JOHN 


GIFT   OF 
EVGENE  MEYER, 


JOHN  ARCHIBALD  CAMPBELL 


JOHN  ARCHIBALD 
CAMPBELL 

ASSOCIATE  JUSTICE  OF  THE 

UNITED   STATES  SUPREME  COURT 

1853-1861 


BY 

HENRY  G.  CONNOR,  LL.D. 

JUDGE  OF  THE  UNITED  STATES  COURT  FOR  THE  EASTERN  DISTRICT 
OF  NORTH  CAROLINA 


BOSTON  AND  NEW  YORK 

HOUGHTON  MIFFLIN  COMPANY 

THE  RIVERSIDE  PRESS  CAMBRIDGE 

1920 


I 


COPYRIGHT,  1920,  BY   HENRY   G.  CONNOR 
ALL    RIGHTS  RESERVED 


TO 

MY  WIFE 
KATE  WHITFIELD  CONNOR 


PREFACE 

IN  the  preparation  of  the  Annual  Address  delivered 
by  me  before  the  Alabama  State  Bar  Association  at 
its  Session  of  1917,  at  Birmingham,  I  became  inter 
ested  in  the  professional  and  judicial  life  and  serv 
ices  of  Judge  John  Archibald  Campbell.  I  was  im 
pressed  with  his  relation  to,  and  the  part  which  he 
took  in,  eventful  cases  and  decisions  as  counsel  and 
Judge  in  the  Supreme  Court  of  the  United  States, 
and  his  connection  with  several  transactions  of 
national  importance  preceding  and  during  the  Civil 
War.  It  seemed  to  me  that,  both  for  their  historical 
value  and  for  a  clearer  understanding  of  the  conduct 
and  motives  of  the  participants,  they  called  for  a 
more  careful  and  thorough  investigation  than  had 
theretofore  been  given  them. 

Judge  Campbell's  career  was,  in  many  respects, 
unique  and  illustrated  his  remarkable  capacity  to 
render  important  service  under  unprecedented  con 
ditions.  The  generous  manner  in  which  the  address 
was  received,  coupled  with  the  approval  of  the  sur 
viving  members  of  Judge  Campbell's  family,  en 
couraged  me  to  enter  upon  and  complete  the  work 
which  is  submitted  in  this  volume.  I  am  indebted  to 
the  family  for  much  of  the  material  which  I  have 
used.  For  the  account  of  those  incidents  in  regard  to 
which  different  versions  have  been  given  I  have 
relied  upon,  and  to  a  large  extent  given  the  exact 


viii  PREFACE 

language  used  in,  the  original  manuscripts  made  by 
him  at  the  time  of  their  occurrence.  While,  of  neces 
sity,  the  work  is  of  special  interest  to  lawyers,  it  is 
hoped  that,  by  reason  of  the  general  character  and 
larger  scope  of  the  questions  involved  in  important 
causes  which  he  argued,  or  took  part  in  deciding,  it 
will  appeal  to  students  of  our  judicial  and  political 
history. 

I  desire  to  express  especial  obligation  to  Captain 
Frederick  M.  Colston,  of  Baltimore,  son-in-law  of 
Judge  Campbell,  without  whose  constant  assistance 
and  generous  interest  the  work  could  not  have  been 
executed.  My  thanks  are  also  due  for  valuable  sug 
gestions  to  Mr.  Carleton  Hunt  and  Mr.  William 
P.  Dart,  of  the  New  Orleans  Bar,  and  to  Captain 
Samuel  A.  Ashe,  of  Raleigh,  North  Carolina. 

H.  G.  CONNOR 

WILSON,  NORTH  CAROLINA 
December  20,  1919 


CONTENTS 

I.  ANCESTRY  AND  EARLY  CAREER  AT  THE  BAR         1 

II.  ASSOCIATE  JUSTICE  OF  THE  SUPREME  COURT 

OF  THE  UNITED  STATES  16 

III.  THE  SLAVERY  QUESTION  BEFORE  THE  COURT     54 

IV.  ON  THE  CIRCUIT:   FILIBUSTERING  AND  THE 

SLAVE  TRADE  89 

V.  EFFORTS  TO  AVERT  CIVIL  WAR  109 

VI.  SERVICES  TO  THE  CONFEDERACY  AND  PEACE 

NEGOTIATIONS  149 

VII.  THE  PROBLEM  OF  RESTORATION  174 

VIII.  THE    SLAUGHTER-HOUSE    CASES    AND    THE 

FOURTEENTH  AMENDMENT  204 

IX.  LAST  YEARS  AT  THE  BAR  236 

X.  PERSONAL  CHARACTERISTICS,  INTELLECTUAL 

AND  SOCIAL  TRAITS  257 

XI.  CONCLUSION  278 

TABLE  OF  CASES  297 

INDEX  301 


JOHN  ARCHIBALD  CAMPBELL 


CHAPTER  I 

ANCESTRY  AND  EARLY  CAREER  AT  THE  BAR 

As  early  as  1729  several  families  of  Scotch  High 
landers  had  settled  on  the  Cape  Fear  River  in  North 
Carolina.  There  they  found  a  genial  climate,  a  fertile 
soil,  and  a  mild  and  liberal  government.  Everything 
contributed  to  their  happiness  and  contentment. 
Their  letters  to  friends  and  relatives  in  Scotland 
glowed  with  praise  of  their  new  home.  Accordingly, 
when  Neill  McNeill,  who  had  been  one  of  the  first 
Scotch  settlers  on  the  Cape  Fear,  returned  from 
a  visit  to  Scotland,  in  1739,  he  brought  with  him 
three  hundred  and  fifty  Highlanders.  The  General 
Assembly,  anxious  to  encourage  further  immigra 
tion  of  these  sturdy  settlers,  exempted  them  from 
public  and  private  taxes  for  ten  years  and  offered 
the  same  inducement  to  any  of  their  countrymen 
who  might  follow  them. 

Following  this  liberal  offer  came  the  disaster  of 
Culloden,  a  general  rise  in  rents  in  the  Highlands, 
and  the  harsh  enactments  of  the  British  Parliament, 
resulting  in  an  immediate  flow,  strong  and  steady, 
of  population  from  the  Highlands  to  the  New 
World.  With  a  keen  appreciation  of  its  commercial 
advantages,  the  Highland  immigrants  selected  a 
point  of  land  at  the  head  of  navigation  of  the  Cape 


2          JOHN  ARCHIBALD  CAMPBELL 

Fear,  where  they  laid  out  a  town,  first  called  Camp 
bellton,  then  Cross  Creek,  afterwards  Fayetteville. 
The  " Scots  Magazine"  and  the  "Courant"  of  that 
period,  contain  numerous  accounts  of  the  sailing 
of  vessels,  carrying  a  large  number  of  Highlanders 
to  North  Carolina,  from  Islay,  Skye,  Sunderland, 
and  other  sections  of  the  Highlands.  Among  other 
Highlanders  who  came  to  Campbellton  were  Allen 
McDonald  and  his  wife  Flora  McDonald,  both  of 
whom  returned  to  Scotland,  after  the  battle  of 
Moore's  Creek  Bridge.1 

Though  unfortunate  economic  conditions  lay  be 
hind  this  emigration,  it  is  not,  therefore,  to  be  sup 
posed  that  those  who  left  their  native  land  to  seek 
homes  in  America  belonged  to  an  improvident  and 
thriftless  class,  or  that  they  arrived  in  Carolina 
empty-handed.  Such  people  are  not  the  kind  who 
voluntarily  take  upon  their  shoulders  the  task  of 
conquering  the  wilderness  and  laying  the  founda 
tions  of  new  States.  The  Highland  emigrants  were 
among  the  most  substantial  and  energetic  people  of 
Scotland;  they  left  the  land  of  their  nativity  because 
it  did  not  offer  them  an  outlet  for  their  activities. 
The  " Scots  Magazine"  refers  to  some  of  them  as 
"the  most  wealthy  and  substantial  people  of  Skye," 
and  the  "Courant"  as  the  "finest  set  of  fellows  in 
the  Highlands."  By  the  year  1754  the  Highland  set 
tlement  around  Campbellton  had  grown  so  impor 
tant  that  the  General  Assembly  erected  it  into  a 

1  Wheeler,  John  H.:  History  of  North  Carolina,  n,  126;  Ashe,  S.A.: 
History  of  North  Carolina,  i,  265-66;  Sprunt,  James:  Chronicles  of  the 
Cape  Fear,  124-27. 


ANCESTRY  AND  EARLY  CAREER   3 

county,  which,  with  curious  irony,  was  called  in 
honor  of  the  Duke  of  Cumberland,  and  gave  it  the 
privilege  of  sending  two  representatives  to  the  Gen 
eral  Assembly. 

As  may  be  inferred  from  the  name  of  their  town, 
the  Campbells  were  both  numerous  and  prominent 
in  the  settlement.  Among  them  was  John  Campbell, 
whose  son,  John  Archibald  Campbell,  served  during 
the  Revolution  as  an  officer  in  the  American  Army 
on  the  personal  staff  of  General  Nathanael  Greene. 
Between  the  years  1779  and  1794  he  represented 
New  Hanover  County  in  the  State  Senate  nine 
terms  and  in  the  House  of  Commons  three  terms.  He 
was  a  delegate  in  the  Constitutional  Conventions  of 
1788  and  1789  from  New  Hanover.  In  the  Conven 
tion  of  1788  he  voted  with  the  majority  against  the 
ratification  of  the  Federal  Constitution.  He  was  also 
Judge  of  the  Admiralty  Court.1 

Duncan  Green  Campbell,  son  of  John  A.  Camp 
bell,  was  born  in  North  Carolina,  February  17, 1787. 
He  was  graduated  from  the  University  of  North 
Carolina  in  1807.  The  following  year  he  moved  to 
Georgia,  where  he  engaged  in  teaching,  becoming 
president  of  a  college  for  women.  He  studied  law  in 
the  office  of  Judge  Griffin,  of  Wilkes  County,  and 
was  duly  admitted  to  the  bar.  Soon  after  his  admis 
sion  he  was  elected  Solicitor-General  of  the  Western 
Circuit.  Following  his  service  in  this  office,  he  repre 
sented  Wilkes  County  for  four  terms  in  the  State 
Legislature.  He  was  the  author  of,  and  introduced, 
the  first  bill  in  the  history  of  Georgia  having  for  its 

1  State  Records  oj  North  Carolina,  xvi,  90-95. 


4          JOHN  ARCHIBALD  CAMPBELL 

purpose  the  promotion  of  the  education  of  women  in 
the  State.  His  speech  advocating  the  measure  at 
tracted  wide  attention  and  gave  an  impetus  to  pub 
lic  sentiment  on  the  subject.  In  the  cause  of  public 
education  he  was  an  enthusiast  and  never  omitted 
an  opportunity  for  its  promotion.  He  was  industri 
ous  in  his  habits,  liberal  in  his  views,  and  always 
watchful  of  the  public  interests,  especially  of  educa 
tion  and  the  diffusion  of  knowledge  among  the  peo 
ple.  He  was,  for  many  years,  a  trustee  of  the  Univer 
sity  of  Georgia.1 

In  1824  Campbell  was  appointed,  by  President 
James  Monroe,  one  of  the  commissioners  to  nego 
tiate  a  treaty  with  the  Creek  Indians  for  the  sale  of 
their  lands  in  Georgia  and  Alabama.  The  negotia 
tions,  with  the  complications  growing  out  of  them, 
became  the  subject  of  a  long  and  bitter  political  con 
troversy  in  Georgia.  The  question  whether  the  course 
pursued  by  the  commissioners  should  be  approved, 
constituted  the  issue  in  the  campaign  of  1824,  when 
the  rival  candidates  for  Governor  were  Governor 
George  M.  Troup  and  Campbell's  brother-in-law, 
General  John  Clarke. 

Clarke's  supporters  attacked  the  conduct  of  the 
commissioners  and  the  treaty  made  by  them.  The 
controversy  placed  Campbell  in  a  very  embarrass 
ing  situation.  Throughout  the  campaign,  although 
he  had  more  at  stake  in  its  issue  than  any  man  in  the 
State,  he  took  no  active  part  in  the  angry  strife,  and 
while  he  continued  the  firm  friend  of  General  Clarke 

1  Sparks,  Jared:  Library  of  American  Biography;  Miller,  S.  F.: 
Bench  and  Bar  of  Georgia,  137. 


ANCESTRY  AND  EARLY  CAREER   5 

he  lifted  no  voice  in  opposition  or  disparagement 
of  Governor  Troup.  "With  Roman  firmness  he 
awaited  the  decision  of  the  people.  Conscious  of  the 
rectitude  of  his  own  conduct,  he  was  fearless  of  con 
sequences."  l 

Governor  Troup  was  elected  and  the  commission 
ers  vindicated.  The  Legislature,  by  a  unanimous 
vote,  approved  their  action,  while  Congress  also 
sustained  the  treaty.2 

In  1828  Campbell  was  nominated  for  Governor. 
His  election  seemed  assured,  but  he  died  July  30, 
1828,  before  the  day  of  the  election.  His  memory 
is  honored  in  the  name  of  one  of  the  counties  of 
Georgia. 

Duncan  Green  Campbell  married  Mary  William 
son,  youngest  daughter  of  Micajah  Williamson, 
Lieutenant-Colonel  of  the  Georgia  Regiment  com 
manded  by  Colonel  Elijah  Clarke,  which  became 
famous  in  the  annals  of  the  War  of  the  Revolution, 
in  the  Southern  Department.  It  is  said  that  her 
mother,  Sarah  Gilliam  Williamson,  grandmother  of 
John  Archibald  Campbell,  "was  perhaps  the  most 
remarkable  woman  who  lived  in  Georgia  during  the 
Revolutionary  struggle.  Considering  her  loyalty  to 
the  cause  of  the  Colonies,  her  courage  in  managing 
a  plantation,  with  a  large  number  of  negro  slaves, 
during  the  absence  of  her  husband  at  the  front,  her 
sufferings  at  the  hands  of  the  enemy,  together  with 
the  success  of  her  descendants,  she  stands  ahead  of 

1  Sparks :  Library  of  American  Biography. 

2  "Georgia  and  States'  Rights,"  Report,  American  Historical 
Association,  u  (1901),  55,  56-59. 


6          JOHN  ARCHIBALD  CAMPBELL 

any  of  her  Georgia  sisters  of  that  day.  .  .  .  Her  five 
sons  grew  up  to  be  successful  men  and  her  six  daugh 
ters  became  beautiful,  refined,  and  educated  women, 
becoming  the  wives  of  distinguished  men.  One 
daughter  married  John  Clarke,  who  became  Gov 
ernor  of  Georgia.  To  Sarah  Williamson  also  belongs 
the  distinguished  honor  of  being  the  first  American 
woman  to  furnish,  from  her  descendants,  two  Jus 
tices  of  the  Supreme  Court  of  the  United  States. 
Justice  John  A.  Campbell,  of  Alabama,  was  her 
grandson,  and  Justice  L.  Q.  C.  Lamar,  of  Georgia 
and  Mississippi,  was  her  great-grandson."  Sparks, 
writing  of  the  early  settlers  of  middle  Georgia,  in 
the  "Atlanta  Constitution,"  says:  "Those  from 
North  Carolina  were  mostly  the  descendants  of 
Scotch-Irish;  from  them  sprang  Micajah  William 
son,  Elijah  Clarke,  John  Clarke .  .  .  the  Abercrombies, 
Holts,  and  Duncan  G.  Campbell.  These  families  and 
these  men,  all  were  remarkable  for  energy,  talent, 
and  enterprise,  and,  scattered  through  the  counties 
of  middle  Georgia,  gave  tone  and  emphasis  to  the 
people  and  fashioned  the  future  of  the  State.  Many 
of  these  and  their  descendants  have  filled  the  first 
offices  of  the  State  and  high  places  in  the  Gov 
ernment  of  the  United  States  through  the  long 
period  of  their  existence,  without  the  imputation  of 
dishonorable  conduct  ever  having  been  imputed  to 
them.  Proud  amongst  these  was  Duncan  Green 
Campbell."  1 

John  Archibald  Campbell,  son  of  Duncan  Green 
Campbell  and  his  wife,  Mary  Williamson  Campbell, 

1  Atlanta  Constitution,  January  10,  1910. 


ANCESTRY  AND  EARLY  CAREER   7 

was  born  in  Washington,  Wilkes  County,  Georgia, 
June  24,  1811.  At  the  age  of  eleven  years  he  entered 
Franklin  College,  later  the  University  of  Georgia, 
from  which  he  was  graduated  in  1825,  with  the  first 
honors  of  his  class.  The  following  interesting  inci 
dent  of  his  college  life  is  given  by  Governor  Gilmer 
in  "The  Georgians ":  "  While  the  son  was  a  student 
of  the  college,  his  father  visited  Athens  and  was  in 
vited  to  attend  a  meeting  of  the  Demosthenian  So 
ciety,  of  which  both  father  and  son  were  members. 
Colonel  Campbell  held  forth,  by  request,  upon  the 
topic  of  debate.  When  he  was  done  speaking,  John 
asked  leave  to  answer  the  gentleman,  and  so 
knocked  all  his  father's  contentions  into  non  sequi- 
turs  that  it  was  difficult  to  tell  which  had  the  upper 
most  in  the  father's  feelings,  mortified  vanity  or 
gratified  pride." 

Upon  his  graduation,  Campbell  was  appointed  by 
the  Secretary  of  War,  John  C.  Calhoun,  to  a  cadet- 
ship  in  the  United  States  Military  Academy  at  West 
Point.  By  reason  of  his  father's  death  he  resigned  in 
1828.  He  spent  a  year  in  Florida,  teaching  school  to 
enable  him  to  discharge  the  responsibilities  imposed 
upon  him  by  his  father's  death.  Returning  to  Geor 
gia,  he  studied  law  with  Governor  Clarke  and  his 
uncle,  John  W.  Campbell.  In  1829,  at  the  age  of 
eighteen,  by  virtue  of  a  special  act  of  the  General 
Assembly,  he  was  admitted  to  the  bar,  together  with 
Robert  Toombs.  Determined  to  leave  Georgia, 
Campbell  went  to  Montgomery,  Alabama,  where, 
on  March  9,  1830,  he  was  admitted  to  the  bar  of 
that  State.  He  continued  to  practice  his  profession 


8          JOHN  ARCHIBALD  CAMPBELL 

in  Montgomery  until  1837,  when,  desiring  a  larger 
field  for  his  chosen  life-work,  he  removed  to  the  city 
of  Mobile. 

While  residing  in  Montgomery,  Campbell  mar 
ried  Anna  Esther  Goldthwaite.  A  native  of  New 
Hampshire,  she  had  accompanied  her  brothers, 
Henry  and  George  Goldthwaite,  to  Alabama  during 
the  early  years  of  the  nineteenth  century.  The  Gold 
thwaite  family  was  established  in  Massachusetts  as 
early  as  1630.  Mrs.  Campbell's  father  and  grand 
father  were  both  Colonial  officers  in  New  England, 
and,  during  the  Revolution,  remained  loyal  to  the 
mother  country.  During  the  war  they  went  to  Eng 
land,  where  her  grandfather,  Colonel  Thomas  Gold 
thwaite,  received  from  the  British  Government  com 
pensation  for  his  service  and  loyalty,  and  for  the  loss 
of  his  large  estate  in  New  England.  He  lived  at  Wal- 
thamstow,  near  London,  where  his  father  had  also 
lived. 

The  brothers  whom  Anna  Goldthwaite  accom 
panied  to  Alabama  became  eminent  members  of  the 
bar  of  Alabama  and  won  high  repute  in  the  service 
of  the  State.  Both  Henry  and  George  Goldthwaite 
were  Justices  of  the  Supreme  Court,  the  latter  being 
Chief  Justice  and,  from  1870  to  1877,  United  States 
Senator.1 

In  an  address  before  the  Alabama  State  Bar  As 
sociation,  in  1884,  Judge  Campbell,  referring  to  his 
early  career  in  Alabama,  said:  "I  continued  to  prac 
tice  without  relaxation  or  diversion  in  her  courts; 
relations  and  habits,  whether  professional,  domes- 

1  Appleton's  Cyclopcedia  of  American  Biography,  u,  673. 


ANCESTRY  AND  EARLY  CAREER   9 

tic,  or  political,  were  formed  in  her  society.  Char 
acter,  capacity,  motives  for  exertion  or  for  action, 
were  developed  and  expanded  there;  and  as  one 
product  and  result,  there  is  an  abiding  love  for  the 
State,  for  the  law  as  a  science  and  a  profession,  and 
an  interest  in  her  judicial  institutions  and  in  the 
members  of  her  State  Bar.  .  .  .  The  courts  were  ad 
ministered  by  men  of  learning  and  apt  judgment; 
and  their  deeds  and  words  were  marked  with  the 
impress  of  moral  and  intellectual  worth,  and  of  per 
sonal  honor.  There  were  among  the  Bar  great  re 
sources  of  energy,  research,  readiness,  and  manli 
ness  of  effort  which  were  habitually  applied. " 

In  1836  Campbell  was  elected  to  the  State  Legis 
lature.  This  was  regarded,  in  those  days,  as  an  es 
sential  step  in  the  preparation  of  a  lawyer  for  a 
larger  sphere  of  activity  in  his  profession.  In  1842  he 
represented  the  city  of  Mobile  in  the  Legislature. 
"  At  this  time  he  was  generally  regarded  as  a  man  of 
clear  and  vigorous  intellect.  In  the  Legislature  he 
stood  foremost  among  the  leaders.  On  important 
occasions,  his  powers  were  exhibited  with  a  cogency 
of  argument  which  commanded  a  degree  of  atten 
tion  which  was  accorded  to  but  few  members.  In  the 
Supreme  Court,  if  not  without  a  rival,  he  had  no  su 
perior.  His  facts  were  stated  in  such  a  natural  order 
and  logical  connection  that  the  truth  was  illuminated 
and  the  judgment  usually  convinced."  1 

His  personal  appearance  and  manner,  at  this  pe 
riod  of  his  life,  are  thus  described  by  Mr.  Miller: 
"He  is  cold,  taciturn,  not  the  least  suggestion  that 

1  Miller,  S.  F. :  Heads  of  Alabama  Legislature. 


10        JOHN  ARCHIBALD  CAMPBELL 

he  courts  society,  absorbed  in  thought,  with  heavy 
brow,  yet  unassuming  expression  of  countenance. 
At  times  he  is  pleasant,  and  always  respectful  when 
it  becomes  necessary  for  him  to  converse.  ...  He 
seems  to  hold  all  elegance  and  imagination  in  utter 
contempt,  as  unworthy  a  practical  man.  As  a  mem 
ber  of  the  Democratic  Party,  he  stands  alone  in 
Alabama  for  greatness  of  conception  in  all  that  re 
lates  to  our  political  system/'  1 

While  Campbell's  experience  in  the  Legislature 
was  unquestionably  valuable  to  him  in  his  career, 
his  title  to  fame  rests  not  upon  his  accomplishments 
as  a  lawmaker,  but  as  an  advocate  and  jurist.  He 
used  wisely  the  opportunity  afforded  him  during 
these  years,  building  upon  strong  and  broad  founda 
tions  the  structure  upon  which  judicial  and  profes 
sional  fame,  later  in  life,  came  to  him. 

When  he  moved  to  Mobile  the  titles  to  lands 
in  Alabama  were  unsettled  and  complicated.  The 
Spanish  grants  were  obscure,  the  surveys  not  exact, 
and  the  growth  of  Mobile  was  rapidly  increasing  the 
value  of  lands  in  the  town.  He  began  the  study  of 
the  French  and  civil  law,  purchasing  the  works  of 
the  standard  authors.  In  his  library  were  found  the 
complete  works  of  D'Auguessau,  Merlin,  Denisant, 
Cocklin,  and  others.  As  a  student  he  was  vigorously 
severe  and  industrious,  prompted  by  a  quenchless 
thirst  for  thorough  and  complete  information. 

During  the  first  years  of  his  practice  he  spent 
an  hour  each  week-day  in  the  study  of  Saunders's 
Pleading,  reproducing  the  forms  of  declarations  and 

1  Bench  and  Bar  of  Georgia,  137. 


ANCESTRY  AND  EARLY  CAREER   11 

pleas  and  eliminating  all  unnecessary  words.  His 
ambition  was  not  in  the  line  of  political  preferment, 
but  in  professional  learning. 

In  the  Supreme  Court  of  Alabama,  and  on  the 
dockets  of  the  Circuit  Courts  in  which  he  practiced, 
is  to  be  found  the  record  of  his  labors.  Evidence  of 
the  loyalty  with  which  he  paid  court  to  the  jealous 
mistress  of  which,  as  he  says,  "without  relaxation  or 
di version  "  he  was  the  suitor,  is  likewise  found  in  his 
opinions,  in  the  reports  of  the  Supreme  Court  of  the 
United  States,  and  in  his  arguments  before  that  tri 
bunal,  both  before  and  subsequent  to  his  elevation 
to  the  Bench  and  retirement.  He  argued,  at  the  De 
cember  Term,  1850,  of  the  Supreme  Court  of  the 
United  States,  Collins  vs.  Hallert.1  At  the  December 
Term,  1851,  he  had  six  appearances,  the  most  im 
portant,  in  point  of  the  interests  involved  and  the 
questions  presented,  being  Gaines  vs.  Relf,  Exr.,  and 
others.2  He  appeared  in  this  case  in  the  Circuit 
Court  of  the  United  States,  where  his  argument  elic 
ited  very  high  praise.  It  was  published  in  full  by  the 
New  Orleans  papers.  His  analysis  of  the  testimony, 
orderly  arrangement,  quotation  and  application  of 
authorities,  from  writers  on  the  civil  law,  and  de 
cided  cases,  American  and  English,  sustain  the  en 
comiums  pronounced  by  those  who  heard  him. 

One  of  the  New  Orleans  dailies  said:  "A  large  as 
semblage  filled  the  court-room,  called  as  well  by  the 
deep  interest  felt  in  this  very  novel  and  extraordi 
nary  case,  as  by  the  fame  of  the  gentleman  appointed 
to  speak.  Their  expectations  were  fully  gratified. 

1  10  Howard,  174.  2  12  Howard,  472. 


12        JOHN  ARCHIBALD  CAMPBELL 

The  argument  of  Colonel  Campbell  was  one  of  the 
ablest  efforts  we  have  ever  heard.  It  was  terse,  logi 
cal,  learned,  profound,  and  eloquent.  All  the  im 
portant  points  in  favor  of  Mrs.  Gaines's  claims  were 
urged  with  an  irresistible  force  of  logic,  a  clearness 
of  style,  and  a  vigor  of  thought  that  seemed  to  carry 
conviction  with  all  the  listeners  and  greatly  to  star 
tle  the  defendants,  who  have  all  along  reposed  very 
confidently  on  the  strength  of  their  case." 

Following  his  argument  the  same  paper  said: 
"The  name  of  this  distinguished  gentleman  is  heard 
on  every  side,  and  appears  to  be  in  the  mouths  of 
every  one.  His  wondrous  argument  in  the  great 
Gaines  case  has  all  but  immortalized  him,  so  lucid, 
forcible,  and  convincing  was  it.  ...  Mr.  Campbell 
has  reaped  the  field  clean  and  garnered  up  for  him 
self  a  rich  harvest.  ...  A  merchant,  whose  business 
was  pressing,  who  desired  to  be  on  'Change  at  a  cer 
tain  hour,  thought  that  he  would  drop  into  the 
United  States  Circuit  Court  for  a  moment  —  only  a 
moment  —  to  hear  a  few  words  of  Campbell's  argu 
ment  and  then  form  a  hasty  opinion  of  the  gentle 
man.  He  did  so  —  moments  passed,  hours,  and  still 
he  moved  not  until  the  close.  He  has  since  declared 
that  he  became  unknowingly  interested  in  the  case 
as  the  gentleman  progressed,  until  so  infatuated  was 
he  with  his  elucidatory  style,  brilliant  and  compre 
hensive  pleading,  that  he  could  not  tear  himself 
away." 

A  stranger  who  was  present  wrote:  " Among  the 
arguments  was  one  by  a  lawyer  from  Mobile,  by  the 
name  of  Campbell.  He  had  made  the  most  ample 


ANCESTRY  AND  EARLY  CAREER  13 

preparation,  and  in  the  most  ingenious  way  threaded 
the  Cretan  labyrinth  of  facts  and  testimony,  holding 
on,  as  he  went,  to  the  clue  of  justice.  Upon  his  reap 
pearance  from  the  mazes  and  windings  of  his  argu 
ment,  we  could  not  help,  though  a  stranger,  tender 
ing  him  our  congratulations.  They  were  received 
with  all  that  modesty  which  will  ever  characterize 
talents." 

This  cause  celebre  in  American  jurisprudence  was 
argued  before  the  Supreme  Court  of  the  United 
States  by  Reverdy  Johnson  and  Campbell  for  Mrs. 
Gaines,  and  by  Daniel  Webster,  Green,  and  Duncan 
for  Relf  and  others.1  The  opinions  of  Justice  Catron, 
writing  for  the  majority  against  the  claim  of  Mrs. 
Gaines,  and  of  Justice  Wayne  for  the  dissenting 
minority,  occupy  forty-two  pages  of  the  volume. 
The  latter  concludes  his  opinion:  "I  think,  then, 
that  I  run  no  risk  in  saying  that  there  is  nothing  in 
the  way  of  the  law  to  be  found  interfering  with  the 
right  of  Myra  Clark  Gaines  to  the  heirship  of  such 
portion  of  her  father's  estate  as  the  law  of  Louisiana 
gives  to  an  only  legitimate  child.  .  .  .  Those  of  us 
who  have  borne  our  part  in  the  case  will  pass  away. 
The  case  will  live.  Years  hence,  as  well  as  now,  the 
profession  will  look  to  it  for  what  has  been  ruled 
upon  its  merits  and  also  for  the  kind  of  testimony 
upon  which  these  merits  were  decided.  The  majority 
of  my  brothers  who  give  the  judgment  stand,  as 
they  may  well  do,  upon  their  responsibility.  I  have 
placed  myself  alongside  of  them,  humbly  submitting 
to  have  any  error  into  which  I  may  have  fallen,  cor- 

1  12  Howard,  427. 


14        JOHN  ARCHIBALD  CAMPBELL 

rected  by  our  contemporaries  and  by  our  profes 
sional  posterity.  The  case  itself  presents  thought 
for  our  philosophy  in  its  contemplation  of  all  the 
business  and  domestic  relations  of  life." 

Judge  CampbelPs  argument  won  much  applause 
for  its  display  of  learning,  legal  acumen,  and  all  the 
higher  and  more  ambitious  qualities  of  his  profes 
sion.  The  language  of  Justice  Wayne  was  prophetic. 
Ten  years  later  the  controversy  in  another  form,  in 
volving,  however,  the  same  questions  that  were  pre 
sented  and  argued  on  the  first  hearing,  found  its  way 
to  the  Court  in  Gaines  vs.  Hennin.1  Justice  Wayne, 
writing  for  the  majority,  reversed  the  conclusion 
reached  in  the  former  appeal  and  sustained  the  con 
tention  of  Mrs.  Gaines.  He  concludes  his  opinion: 
"Thus,  after  a  litigation  of  thirty  years,  has  this 
Court  adjudicated  the  principles  applicable  to  her 
rights  in  her  father's  estate.  They  are  now  finally 
settled.  When,  hereafter,  some  distinguished  Ameri 
can  lawyer  shall  retire  from  his  practice  to  write 
the  history  of  his  country's  jurisprudence,  this  case 
will  be  registered  by  him  as  the  most  remarkable  in 
the  records  of  the  courts." 

But  the  end  was  not  yet.  The  litigation  went  on 
in  varying  and  variant  forms.  Seven  years  later, 
in  Gaines  vs.  New  Orleans,2  Justice  Davis,  Justice 
Wayne  having  passed  away,  wrote  for  the  Court,  ex 
pressing  the  hope  that  the  litigation  would  be  closed 
by  the  decision  then  made.  He  said:  "It  has  been 
pursued  by  the  complainant  with  a  vigor  and  energy 
hardly  ever  surpassed,  in  defiance  of  obstacles 

1  24  Howard,  615.  2  6  Wall.  642. 


ANCESTRY  AND  EARLY  CAREER  15 

which  would  have  deterred  persons  of  ordinary 
mind  and  character,  and  has  enlisted,  on  both  sides, 
at  different  periods,  the  ablest  talent  of  the  Ameri 
can  bar.  .  .  .  Courts,  in  the  administration  of  jus 
tice,  have  rarely  had  to  deal  with  a  case  of  greater 
hardship  or  more  interesting  character.  .  .  .  Can  we 
not  indulge  the  hope  that  the  rights  of  Myra  Clark 
Gaines  in  the  estate  of  her  father  will  now  be  recog 
nized?" 

Although  Mrs.  Gaines  had,  in  many  of  the  numer 
ous  trials,  won  victories,  she  was  required  to  estab 
lish  on  each  hearing  the  determinative  facts  upon 
which  her  right  to  her  father's  estate  depended.  In 
the  final  opinion,  the  Court  was  required  to  ree'x- 
amine  the  testimony  which  Judge  Campbell  ana 
lyzed  and  discussed  in  1851,  and  reached  the  final 
decision  by  the  same  processes  of  reasoning  pursued 
by  him  before  the  Circuit  Court  in  New  Orleans. 
Judge  Campbell's  last  appearance  in  the  Gaines 
case  is  reported  in  New  Orleans  vs.  Gaines,  Admr.1 
It  is  a  source  of  regret  that,  in  response  to  the 
suggestion  of  Justice  Wayne,  "some  distinguished 
American  lawyer  retired  from  practice,"  has  not 
written  a  history  of  this  most  interesting  case,  which 
not  only  bristles  with  incidents  illustrative  of  the 
controlling  passions  and  philosophy  of  all  the  busi 
ness  and  domestic  relations  of  human  life,  but  also 
presents  principles  of  civil,  ecclesiastical,  common 
and  statute  law,  both  State  and  Federal,  illumi 
nated  by  citations  from  almost  every  source. 

i  131  U.S.  191.  . 


CHAPTER  II 

ASSOCIATE  JUSTICE  OF  THE  SUPREME  COURT  OF  THE 
UNITED  STATES 

CAMPBELL'S  reputation  as  a  lawyer  had  extended 
beyond  the  limits  of  the  State.  He  held  a  high  posi 
tion  in  the  estimation  of  the  Justices  of  the  Supreme 
Court  of  the  United  States,  and  it  was  inevitable 
that  sooner  or  later  he  would  be  called  into  the  judi 
cial  service  of  the  State  or  Nation.  In  1835,  while  he 
was  serving  a  term  in  the  General  Assembly,  he  re 
ceived  from  Governor  Clement  C.  Clay  the  offer  of 
an  appointment  to  the  Supreme  Court  of  Alabama. 
This  offer  he  felt  it  his  duty  to  decline.  Later  a  simi 
lar  offer  was  made  by  Governor  Henry  W.  Collier, 
which  he  declined.  On  January  19,  1852,  Justice 
McKinley,  of  the  Supreme  Court  of  the  United 
States,  died.  President  Fillmore  nominated  to  the 
vacancy  George  E.  Badger,  Senator  from  North 
Carolina.  There  was  no  question  regarding  Mr. 
Badger's  learning,  ability,  and  fitness  for  the  posi 
tion,  but  his  attitude  in  the  Senate  on  the  slavery 
question  during  the  sessions  of  1850  and  1852  pre 
vented  his  confirmation  by  the  Senate.  Accordingly, 
the  vacancy  had  not  been  filled  when  Franklin 
Pierce  was  inaugurated  President,  March  4,  1853. l 

1  For  an  interesting  account  of  Mr.  Badger's  nomination  see 
Papers  of  Thomas  Ruffin,  n,  365,  382,  389.  Mr.  Venable,  a  member 
of  Congress  from  North  Carolina,  says  Mr.  Badger's  nomination 
failed  because  he  did  not  live  in  the  district  from  which  Justice 
McKinley  came,  and  for  that  cause  alone. 


JUSTICE  OF  THE  SUPREME  COURT    17 

Upon  the  request  of  the  members  of  the  Supreme 
Court  of  the  United  States,  President  Pierce  nom 
inated  Campbell,  who,  on  March  22,  1853,  was 
unanimously  confirmed  to  fill  the  vacancy.  In  a 
memorial  address  delivered  before  the  Bar  of  the 
Supreme  Court,  October  13,  1874,  Judge  Campbell 
said:  "The  death  of  Judge  McKinley  made  a  va 
cancy  and  that  vacancy  was  supplied  by  one  recom 
mended  by  the  Justices  —  Judges  Catron  and  Curtis 
bearing  their  letters  of  recommendation  to  the 
President."  1 

Mr.  Carson,  referring  to  the  appointment,  says: 
"He  was  a  profound  and  philosophic  jurist,  who 
gave  vigor  and  breadth  to  his  intellect  by  constantly 
resorting  to  the  great  sources  of  the  Roman  law. 
From  1837  to  1853  the  story  of  his  life  was  the  rou 
tine  of  an  industrious,  painstaking,  earnest  lawyer, 
exploring  every  domain  of  knowledge  to  make  it 
tributary  to  his  profession,  overpowering  his  com 
petitors  at  the  bar  by  his  great  researches  into  the 
history  of  the  law  and  his  familiarity  with  principles 
and  cases."  2 

The  "New  York  Times,"  commending  the  ap 
pointment,  said:  "His  professional  learning  is  said 
to  be  vast  and  his  industry  very  great.  Outside  his 
profession  he  is  most  liberally  cultivated  and,  in  this 
respect,  ranks  beside  Story.  .  .  .  His  mind  is  singu 
larly  analytical.  Added  to  all,  and  crowning  all,  his 
perfect  character  is  of  the  best  stamp,  modest,  amia 
ble,  gentle,  strictly  temperate,  and  inflexibly  just." 

1  20  Wallace,  ix. 

2  Carson,  H.  L.:  The  Supreme  Court  of  the  United  States,  350. 


18        JOHN  ARCHIBALD  CAMPBELL 

The  appointment  met  with  the  general  approval 
of  the  public  and  the  profession. 

Mr.  Badger,  in  the  Senate  (1854),  advocating  a 
bill  increasing  the  compensation  of  the  Justices,  thus 
refers  to  Judge  Curtis  and  Judge  Campbell:  "The 
two  Juniors  of  the  Court,  from  the  extreme  points 
of  the  Union,  North  and  South,  men  of  the  highest 
character  for  learning,  for  integrity,  for  talent,  for 
judicial  propriety  and  decorum;  men  who  have  been 
placed  upon  the  Bench  with  the  prospect  of  having 
a  long  career  of  usefulness  to  their  country  and  of 
honor  for  themselves,  men  led  by  a  natural  and  hon 
orable  ambition,  by  a  just  professional  pride,  ele 
vating  them  above  sordid  considerations,  to  accept 
a  position,  the  compensation  of  which  does  not  ex 
ceed  the  fourth  of  what  their  profession  would  have 
produced  and  would  have  continued  for  many  years 
to  have  produced  for  them." 

In  his  eulogy  of  Justice  Curtis,  pronounced  before 
the  Bar  of  the  Supreme  Court  in  1875,  Judge  Camp 
bell  gives  his  estimate  of  the  personnel  of  the  Court 
at  the  time  of  his  appointment.  Referring  to  the 
manner  in  which  Judge  Curtis  was  called  to  the 
Bench,  he  said:  "The  appointment  came  to  him.  He 
was  not  required  to  pursue  or  to  beseech  it.  It  came 
to  him  by  a  divine  right  —  as  the  fittest.  The  Court 
was  presided  over  by  Chief  Justice  Taney,  who  had 
established,  to  the  acknowledgment  of  all,  that  his 
commission  was  held  by  the  same  title.  He  was  then 
seventy-three  years  of  age,  bowed  by  years  and  in 
firmity  of  constitution.  In  the  administration  of  the 
order  and  procedure  of  the  Court,  there  was  dignity, 


JUSTICE  OF  THE  SUPREME  COURT    19 

firmness,  stability,  exactitude,  and,  with  these,  be 
nignity,  gentleness,  grace,  and  right  coming.  The 
casual  visitor  acknowledged  that  it  was  the  most 
majestic  tribunal  of  the  Union,  and  that  the  Chief 
Justice  was  the  fittest  to  pronounce  in  it  the  oracles 
of  justice.  All  of  the  Justices  had  passed  the  merid 
ian  of  ordinary  life  before  their  Junior  Associate  had 
come  to  the  Bar.  There  was  much  stateliness  in 
their  appearance,  and,  with  diversities  of  character, 
education,  discipline,  attainments,  and  experience, 
all  of  them  had  passed  through  a  career  of  honor 
able  service,  were  men  of  large  grasp  of  mind  and 
honorable  purpose.  .  .  .  Their  deliberations  were 
usually  frank  and  candid.  It  was  a  rare  incident  .  .  . 
when  the  slightest  disturbance,  from  irritation,  ex 
citement,  passion,  or  impatience,  occurred.  There 
was  habitual  good-breeding,  self-control,  mutual 
deference,  in  Judge  Curtis,  invariably  so.  There  was 
nothing  of  cabal,  combination,  or  excitement,  or  ex 
orbitant  desire  to  carry  questions  or  cases.  Their 
aims  were  honorable,  and  all  the  arts  employed  to 
attain  them  were  manly  arts."  1 

Could  there  have  come  to  a  lawyer,  who  had  de 
voted  the  early  years  of  his  life  to  the  science  of  the 
law  and  pursued  " without  relaxation  or  diversion" 
the  gladsome  light  of  jurisprudence,  a  richer  re 
ward,  bringing  higher  gratification  of  an  honorable 
ambition,  than  the  call  to  join  this  goodly  company, 
to  become  a  co-worker  with  them  in  administering 
justice  in  one  of  the  highest  judicial  tribunals  of  the 
world?  Richmond  M.  Pearson,  afterwards  Chief 

1  20  Wall.  ix. 


20        JOHN  ARCHIBALD  CAMPBELL 

Justice  of  North  Carolina,  who  was,  by  hard  work 
and  unrelenting  study,  laying  the  foundations  upon 
which  he  built  his  fame  as  one  of  the  great  common- 
law  judges  of  the  country,  said  when  a  young  man 
that  his  ambition  was  to  go  upon  the  Supreme  Court 
Bench  and  "rub  up  against  Ruffin,"  who,  without 
dissent,  is  conceded  to  have  been  North  Carolina's 
greatest  Chief  Justice.  We  may  well  conceive  that  a 
similar  vision  came  to  Judge  Campbell,  when,  for 
twenty  years,  he  was  imbuing  his  mind  with  the 
principles  of  the  common  law  and  mastering  the 
writings  of  the  jurists  of  the  civil  law.  When  Judge 
William  Gaston,  of  North  Carolina,  was  offered  the 
United  States  Senatorship,  he  put  it  away  from  him, 
saying,  "To  administer  justice  in  the  last  resort,  to 
expound  and  apply  the  laws  for  the  advancement  of 
right  and  the  suppression  of  wrong,  is  an  ennobling 
and,  indeed,  a  holy  office,  and  the  exercise  of  its 
functions,  while  it  raises  my  mind  above  the  mists  of 
earth,  above  cares  and  passions,  into  a  pure  and 
serene  atmosphere,  always  seems  to  impart  fresh 
vigor  to  my  understanding  and  a  better  temper  to 
my  whole  soul/'  To  a  lawyer  inspired  with  this  no 
ble  ambition,  wealth,  political  position,  and  power 
count  nothing  when  compared  with  the  opportuni 
ties  for  service  which  the  judicial  office  brings. 

Judge  Campbell  performed  his  full  share  of  the 
work  of  the  Court  of  which  he  had  become  a  mem 
ber.  It  is  difficult  for  one  who  has  not  taken  part  in 
the  deliberations  and  discussions  of  the  conference 
room  of  a  court  of  appeals  to  place  a  proper  value  on 
the  personal  and  judicial,  mental,  and  moral  quali- 


JUSTICE  OF  THE  SUPREME  COURT  21 

ties  of  each  member  of  the  Court,  or  to  estimate  his 
influence  in  aiding  his  associates  in  coming  to  a  con 
clusion,  moulding  the  form  which  the  opinion  takes, 
giving  expression  to  the  thought  and  mental  proc 
esses  by  which  the  conclusion  is  sustained.  The 
work  of  a  judge,  therefore,  can  best  be  understood 
and  estimated  by  a  careful  study  of  his  own  and  the 
opinions  of  his  associates.  It  is  impossible,  except  to 
a  limited  extent,  to  do  more  than  refer  to  the  most 
important  opinions  written  by  Judge  Campbell. 
Reference  to  some  of  the  most  notable  will  enable  us 
to  estimate  the  quality  of  his  judicial  work,  his 
method  of  labor,  style  of  expression,  the  extent  of 
his  research  and  cogency  of  reasoning. 

At  the  first  term  at  which  he  sat,  December,  1853, 
the  case  of  The  Executors  of  John  McDonogh  vs. 
Mary  Murdock  and  others,  heirs  at  law,  was  argued 
by  Robert  J.  Brent,  Henry  May,  and  William  H. 
Hunt,  for  the  appellants,  and  by  Reverdy  Johnson 
and  Judah  P.  Benjamin  for  the  appellees.  Judge 
Campbell,  writing  the  opinion,  expressed  acknowl 
edgment  of  the  aid  received  from  the  able  argu 
ments  at  the  bar  and  from  the  profound  discussions 
in  the  Supreme  Court  of  Louisiana.  The  case  in 
volved  the  validity  of  the  holographic  will  of  John 
McDonogh,  who,  domiciled  in  Louisiana,  died  with 
out  children,  devising  a  valuable  estate  in  trust  for 
the  establishment  and  maintenance  of  several  pub 
lic  charities.  He  directed  that  his  estate  should  be 
held  by  trustees  in  succession  to  effectuate  his  pur 
poses,  as  declared  in  his  will;  that,  after  execution 
of  several  specific  trusts,  the  balance  of  his  estate 


22        JOHN  ARCHIBALD  CAMPBELL 

should  be  invested,  and  the  income  applied  to  the 
education  of  the  poor  children,  without  regard  to 
caste  or  color,  in  the  cities  of  New  Orleans  and  Balti 
more,  "the  whole  of  the  general  estate  to  form  a 
fund,  in  real  estate,  which  shall  never  be  sold  or 
alienated,  but  be  held  and  forever  remain  sacred. " 

A  number  of  difficult  and  interesting  questions 
were  presented  and  argued  with  elaborate  prepara 
tion,  distinguished  ability,  and  a  wealth  of  learning. 
The  reporter  states  that  the  opinions  of  a  number  of 
eminent  French  jurists  were  taken  and  relied  upon 
in  the  argument.  Judge  Campbell  states  clearly  the 
objects  and  purposes  of  the  testator,  as  set  out  in  his 
will,  saying:  "The  exaggeration  which  is  apparent 
in  the  scheme  he  projects,  and  the  ideas  he  expresses 
concerning  it,  afford  the  ground  of  the  argument  for 
the  appellees.  It  is,  however,  unfair  to  look  to  the 
parts  of  the  will  which  relate  to  the  disorders  which 
prevail  in  society,  or  to  the  aspirations  of  the  testa 
tor  to  furnish  relief  for  those  '  during  all  time/  or  to 
the  prophetic  visions  awakened  by  the  exalted  and 
exciting  ideas  which  dictated  the  conditions  of  the 
will,  for  the  rule  of  its  interpretation.  We  must  look 
to  the  conveyances  he  has  made  in  the  instrument, 
the  objects  they  are  fitted  to  accomplish,  and  the 
agencies,  if  any,  to  be  employed,  and  endeavor  to 
frame  these  into  a  consistent  and  harmonious  plan, 
accordant  with  his  leading  and  controlling  inten 
tions." 

Judge  Campbell  traces  the  sources  and  history  of 
Roman  jurisprudence,  upon  which  that  of  Louisiana 
is  founded,  quoting  from  the  codes  and  the  writ- 


JUSTICE  OF  THE  SUPREME  COURT  23 

ings  of  the  great  jurists  of  the  civil  law,  for  the  pur 
pose  of  interpreting  the  provisions  of  the  Louisiana 
Code,  prohibiting  substitutions  and  fidei  commissa, 
by  which  the  trustee  named  could  substitute  an 
other  to  take  his  place,  thus  continuing  the  trust  in 
definitely,  saying:  "The  terms  are  of  Roman  origin 
and  were  applied  to  modes  of  donation  by  will,  com 
mon  during  its  empire,  and  from  thence  were  trans 
ferred  to  the  derivative  system  of  law  in  use  upon 
the  Continent  of  Europe." 

After  an  interesting  history  of  the  method  re 
sorted  to  for  building  up  and  continuing  in  families 
and  corporations  large  estates  and  their  accumula 
tions,  he  says:  "This  mode  of  limiting  estates  from 
degree  to  degree,  and  generation  to  generation,  was 
much  employed  on  the  Continent  of  Europe,  and 
served  to  accumulate  wealth  in  a  few  families,  at 
the  expense  of  the  interests  of  the  community.  The 
vices  of  the  system  were  freely  exposed  by  the  po 
litical  writers  of  the  last  century,  and  a  general 
antipathy  excited  against  it.  Substitutions  having 
this  object  were  prohibited  during  the  Revolution 
in  France,  and  that  prohibition  was  continued  in  the 
Code  Napoleon,  whose  authors  have  exposed,  with 
masterly  ability,  the  evils  which  accompanied  them. 
The  prohibition  was  transferred  to  the  Code  of  Lou 
isiana." 

He  reaches  the  conclusion  that  the  prohibition 
does  not  extend  to  municipal  corporations,  or  to 
trusts  "for  lawful  and  honorable  purposes,  or  for 
public  works,  or  for  other  objects  of  piety  or  benevo 
lence."  The  opinion  vindicated  the  wisdom  of  the 


24        JOHN  ARCHIBALD  CAMPBELL 

Justices  of  the  Supreme  Court  in  asking  his  appoint 
ment  and  the  President  in  making  it.  It  contains  a 
mine  of  learning  upon  one  of  the  most  interesting 
and  important  questions  in  our  chancery  jurispru 
dence,  derived  from  the  civilians  and  the  Statute  of 
43d  Elizabeth,  as  applied  to  American  conditions.  It 
is  a  monument  in  the  course  of  judicial  decisions  in 
this  country,  upholding  and  administering  charities 
created  and  contributed  to  by  men  and  women  of 
wealth,  large  vision,  and  humane  sympathies.1 

At  the  same  term  a  case  was  decided  involving 
the  title  to  valuable  property  and  the  interests  of 
the  members  of  the  Methodist  Episcopal  Church. 
The  litigation  grew  out  of  the  division  in  the  thought 
and  conviction  of  the  members  of  the  Church  resid 
ing  in  the  Northern  and  Southern  sections  in  regard 
to  the  institution  of  slavery.  It  was  argued  by  Henry 
Stanbery,  of  Ohio,  George  E.  Badger,  of  North 
Carolina,  and  Thomas  Ewing,  of  Ohio.  The  cause  of 
the  separation  was  well  understood,  but  was  not  re 
ferred  to  in  the  opinion  of  Justice  Curtis,  who  wrote 
for  a  unanimous  court,  sustaining  the  contention  of 
the  Southern  branch  of  the  Church.2 

It  was  also  decided  at  that  term  that  "  Morse  was 
the  first  and  original  inventor  of  the  electro-mag 
netic  telegraph  for  which  a  patent  was  issued  to  him 
in  1840  and  reissued  in  1848." 3  Salmon  P.  Chase 
was  of  counsel  for  the  plaintiff,  George  Harding  for 
the  defendants.  There  was  a  difference  of  opinion 
among  the  Justices  upon  some  of  the  claims. 

1  15  Howard,  564.        2  Smith  vs.  Swormstedt,  15  Howard,  288. 
8  O'Reiley  vs.  Morse,  15  Howard,  62. 


JUSTICE  OF  THE  SUPREME  COURT  25 

In  Winans  vs.  Denmead,  decided  at  the  same 
term,1  involving  the  alleged  infringement  of  the  pat 
ent  issued  to  Ross  Winans  for  the  invention  of  the 
"drop  bottom  coal  car/'  the  general  form  of  which  is 
now  in  common  use,  the  claim  of  Winans  was  sus 
tained  in  an  opinion  by  Judge  Curtis.  Judge  Camp 
bell,  in  a  dissenting  opinion,  in  which  the  Chief  Jus 
tice  and  Judges  Catron  and  Daniel  concurred,  said: 
"To  escape  the  incessant  and  intense  competition 
which  exists  in  every  department  of  industry,  it  is 
not  strange  that  persons  should  seek  the  cover  of  the 
Patent  Act  for  any  happy  effort  of  contrivance  or 
misconstruction;  nor  that  patents  should  be  very 
frequently  employed  to  obstruct  invention,  and  to 
deter  from  legitimate  operations  of  skill  and  indus 
try.  This  danger  was  foreseen  and  provided  for  in 
the  Patent  Act.  .  .  .  Nothing  in  the  administration 
of  this  law  will  be  more  mischievous,  more  produc 
tive  of  oppressive  and  costly  litigation,  of  exorbi 
tant  and  unjust  pretensions  and  vexatious  demands, 
more  injurious  to  labor,  than  a  relaxation  of  these 
wise  and  salutary  requirements  of  the  act  of  Con 
gress." 

In  this  opinion  we  find  the  first  indication  of 
Campbell's  hostility  to  monopolies  and  the  begin 
ning  of  his  long  and  ably  maintained  opposition  to 
them  in  their  manifold  forms. 

In  an  interesting  history  of  the  case  of  Burr  vs. 
Duryee,2  Albert  H.  Walker,  in  his  sketch  of  George 
Harding,  thus  refers  to  the  case  of  Winans  vs.  Den- 
mead:  "  When  that  case  was  argued  two  young  Jus- 

1  15  Howard,  330.  2  1  Wall.  531. 


26        JOHN  ARCHIBALD  CAMPBELL 

tices  of  great  ability  had  lately  come  upon  the  Bench. 
These  were  Justices  Curtis,  of  Massachusetts,  and 
Campbell,  of  Alabama.  Justice  Curtis  delivered  the 
opinion  of  five  Justices  in  terms  which  were  con- 
struable  as  affirming  the  patentability  of  the  opera 
tion  of  a  mechanical  apparatus.  Justice  Campbell 
delivered  the  opinion  of  four  Justices  vigorously  con 
troverting  the  opinion  of  Justice  Curtis  and  the  con 
sequent  conclusion  of  the  Court.  The  development 
of  the  science  of  the  patent  law,  which  has  occurred 
since  1853,  has  logically  established  the  unsound- 
ness  of  the  opinion  of  the  five  Justices." 

Mr.  Harding  wished  to  have  the  decision  in 
Winans  vs.  Denmead,  upon  which  complainant  in 
Burr  vs.  Duryee  relied,  reversed.  Three  of  the  Jus 
tices  who  joined  in  the  majority  opinion  in  the  first 
case  were  then  on  the  Bench.  He  avoided  any  refer 
ence  to  the  Denmead  case,  but  furnished  arguments 
fatal  to  its  correctness.  He  so  far  succeeded  that  Jus 
tice  Grier,  who  concurred  in  the  decision  of  the  first 
case,  wrote  the  unanimous  opinion  in  the  last  case, 
"and  that  opinion,"  though  not  formally  overruling 
"Winans  vs.  Denmead,  did  speak  of  what  is  really 
the  doctrine  of  that  case  in  tones  that  it  is  difficult 
to  distinguish  from  tones  of  contempt.  .  .  .  Justice 
Curtis  and  Justice  Campbell  measured  their  intellec 
tual  spears  in  Winans  vs.  Denmead.  Voting  with 
Curtis  were  Justices  McLean,  Wayne,  Nelson,  and 
Grier.  Voting  with  Campbell  were  Chief  Justice 
Taney  and  Justices  Catron  and  Daniel.  It  was  a  di 
vision  of  the  Court  on  Mason  and  Dixon's  line,  ex 
cept  that  Justice  Wayne  of  Georgia  voted  with  the 


JUSTICE  OF  THE  SUPREME  COURT  27 

four  Northern  Justices,  instead  of  with  his  four 
Southern  brethren.  ...  On  the  issue  which  they  de 
bated  in  the  Supreme  Bench  and  which  Curtis  won 
there  in  Winans  vs.  Denmead,  Campbell  was  right 
and  Curtis  was  wrong.  And  because  he  was  right, 
Campbell's  dissenting  opinion  has  now,  after  many 
years,  been  substantially  embodied  in  the  case  law 
of  the  United  States,  while  the  opinion  of  Curtis  re 
mains  only  to  be  quoted  by  those  who  do  not  under 
stand  how  obsolete  it  really  is."  1  It  is  interesting  to 
note  that,  although  complainant  in  his  brief  relies 
on  Winans  vs.  Denmead,  defendant's  counsel  do  not 
refer  to  it,  nor  is  it  cited  or  referred  to  in  the  opin 
ion  of  Justice  Grier. 

In  Marshall  vs.  Baltimore  &  Ohio  Railroad  Com 
pany,2  Judge  Campbell  wrote  a  dissenting  opinion 
vigorously  combating  the  trend  of  the  Court  toward 
the  enlargement  of  the  jurisdiction  of  the  Federal 
Courts  in  cases  in  which  corporations  were  parties, 
upon  the  theory  that  they  were  citizens  within  the 
meaning  of  the  Constitution  and  of  the  Judiciary 
Act.  The  debate  was  of  long  standing,  and  the  evo 
lution  of  the  doctrine  by  which  the  jurisdiction  has 
been  sustained  and  enlarged  is  among  the  most  in 
teresting  subjects  in  our  judicial  history.  It  began 
with  the  decision  of  Devaux's  case,3  in  which  Chief 
Justice  Marshall  said:  "That  invisible,  intangible, 
and  artificial  being,  that  mere  legal  entity,  a  corpo 
ration  aggregate,  is  certainly  not  a  citizen  and,  con 
sequently,  cannot  sue,  or  be  sued,  in  the  courts  of 

1  Great  American  Lawyers,  vin,  64-70. 

2  16  Howard,  314.  3  5  Cranch,  61  (1809). 


28        JOHN  ARCHIBALD  CAMPBELL 

the  United  States,  unless  the  rights  of  the  members, 
in  this  respect,  can  be  exercised  in  their  proper  name. 
If  the  corporation  be  considered  as  a  mere  faculty, 
and  not  as  a  company  of  individuals  who,  in  the 
transactions  of  their  joint  concerns,  may  use  a  legal 
name,  they  must  be  excluded  from  the  courts  of  the 
Union."  In  that  case  the  jurisdiction  of  the  Court 
was  sustained  upon  the  averment  that  the  stock 
holders  and  directors  of  the  Bank  of  the  United 
States  and  the  defendants  were  citizens  of  different 
States.  In  Louisville,  C.  &  C.  Railroad  Company  vs. 
Letson,1  the  Court,  Taney  being  then  Chief  Justice, 
while  disclaiming  that  it  was  overruling  the  Devaux 
case,  announced  the  doctrine  that  upon  the  averment 
of  the  domicile  of  origin  of  the  corporation  the  pre 
sumption  arose  that  the  stockholders  were  citizens 
of  the  same  State. 

In  Marshall  vs.  Baltimore  &  Ohio  Railroad  Com 
pany,  the  jurisdiction  was  invoked  upon  the  aver 
ment  that  "the  Baltimore  &  Ohio  Railroad  Com 
pany  is  a  body  corporate,  by  an  Act  of  the  General 
Assembly  of  Maryland,"  the  plaintiff  being  a  citizen 
of  Virginia.  The  corporation  challenged  the  jurisdic 
tion  in  that  it  was  not  alleged  that  any  of  its  stock 
holders  were  citizens  of  Maryland.  Mr.  Justice  Grier, 
writing  for  the  majority,  held  that  the:  form  of  the 
averment  was  sufficient;  that  the  presumption  aris 
ing  from  the  habitat  of  a  corporation  in  the  place  of 
its  creation  was  conclusive  as  to  the  residence  or  citi 
zenship  of  those  who  use  the  corporate  name  and 
exercise  the  faculties  conferred  by  it,  and  that  the 

1  2  Howard,  497  (1844). 


JUSTICE  OF  THE  SUPREME  COURT    29 

declaration  contained  a  sufficient  averment  that  the 
real  defendants  were  citizens  of  that  State. 

Judge  Campbell  dissented  in  strong  but  temper 
ate  language.  After  reviewing  the  earlier  cases  and 
discussing  Letson's  case,  citing  the  language  of 
Chief  Justice  Marshall  in  the  Devaux  case,  which  he 
insisted  was  the  only  authoritative  declaration  of  the 
Court,  he  says:  "The  word  ' citizen '  in  the  American 
Constitution,  State  and  Federal,  had  a  clear,  dis 
tinct,  and  recognized  meaning,  understood  by  the 
common  sense  and  interpreted  accordingly  by  this 
Court  through  a  series  of  adjudications.  The  Court 
has  contradicted  that  interpretation,  which  will 
undermine  every  limitation  in  the  Constitution,  if 
universally  adopted.  A  single  instance  of  the  kind 
awakens  apprehension,  for  it  is  regarded  as  a  link  in 
a  chain  of  repetitions.  The  litigation  before  this 
Court,  during  this  term,  suffices  to  disclose  the  com 
plication,  difficulty,  and  danger  of  the  controversies 
that  must  arise,  before  these  anomalous  institutions 
shall  have  attained  their  legitimate  place  in  the  body 
politic.  Their  revenues  and  establishments  mock  at 
the  frugal  and  stinted  conditions  of  State  adminis 
tration;  their  pretensions  and  demands  are  sover 
eign,  admitting,  impatiently,  interference  by  State 
legislative  authority.  ...  I  am  not  willing  to 
strengthen,  or  to  enlarge,  the  connection  between 
the  courts  of  the  United  States  and  these  litigants. 
I  can  consent  to  overturn  none  of  the  precedents  or 
principles  of  this  Court,  to  bring  them  within  their 
control  and  influence.  I  consider  that  the  mainte 
nance  of  the  Constitution,  unimpaired  and  unal- 


30        JOHN  ARCHIBALD  CAMPBELL 

tered,  a  greater  good  than  could  possibly  be  effected 
by  the  extension  of  the  jurisdiction  of  this  Court  to 
embrace  any  class  either  of  persons  or  cases." 

The  jurisdiction  of  the  Federal  Court  in  cases  in 
which  corporations  are  parties  has  long  since  passed 
beyond  the  domain  of  debate.  It  must  be  conceded 
that  in  establishing  such  jurisdiction,  the  science  of 
pleading  and  resort  to  a  fiction  has  been  liberally  in 
voked.  As  matter  of  fact  the  conclusive  presumption 
upon  which  the  jurisdiction  is  based  is  in  a  large  ma 
jority  of  cases  untrue.  The  development  of  the  doc 
trine  is  an  interesting  illustration  of  the  definition  of 
a  " fiction,"  which,  Sir  Henry  Maine  says,  "is  an  as 
sumption  which  conceals  the  fact  that  a  rule  of  law 
has  undergone  alteration,  the  letter  remaining  un 
changed."  1  Or,  as  Bentham  terms  it,  "An  instru 
ment  of  arbitrary  power  invented  by  functionaries, 
invested  with  limited  powers  for  the  purpose  of 
breaking  through  the  limits  in  which  the  power  was 
intended  to  be  circumscribed."  2 

Justice  Harlan  illustrates  the  practical  working  of 
the  presumption  indulged  to  sustain  the  jurisdic 
tion:  "The  result  will  be  that  immediately  prior  to 
February,  1893,  before  the  Pennsylvania  corpora 
tion  was  organized,  the  stockholders  of  the  Virginia 
corporation  were  presumably  citizens  of  Virginia; 
that,  a  few  days  thereafter,  in  February,  1893,  when 
they  organized  the  Pennsylvania  corporation,  the 
same  stockholders  became  presumably  citizens  of 
Pennsylvania;  and  that  on  the  first  day  of  March, 
1893,  .  .  .  the  same  persons  were  presumably  citi- 

1  Ancient  Law,  25.  2  Works,  ix,  59-77. 


JUSTICE  OF  THE  SUPREME  COURT  31 

zens,  at  the  same  moment  of  time,  of  both  Virginia 
and  Pennsylvania."  1 

Fictions  have  always  been  prolific  sources  for  the 
enlargement  and  amplification  of  jurisdiction,  and 
will  probably  continue  to  be  resorted  to  by  courts 
for  that  purpose.2  There  is  much  truth  in  Governor 
Simeon  Baldwin's  observation  in  discussing  this 
question.  He  says:  "The  ease  with  which  this  may 
be  done,  under  such  circumstances,  is  both  a  sign  of 
the  strength  of  the  written  constitution  and  the  util 
ity  of  the  legal  fiction.  Written  constitutions  are 
strong,  because,  if  need  be,  new  meanings  can  be 
read  into  them  and  old  meanings  read  out  of  them, 
in  the  quiet  of  a  courtroom,  by  judicial  authority. 
Legal  fictions  have  been  found  of  service  because 
they  make  bridges  between  social  epochs  —  useful 
while  travel  goes  that  way  —  easily  burned  or 
shifted  to  new  positions  when  it  may  be  forwarded 
to  some  new  goal."  3 

In  Dodge  vs.  Woolsey,4  Judge  Campbell  again,  in 
a  dissenting  opinion,  expressed  his  hostility  to  the 
extension  of  the  jurisdiction  of  the  Federal  Court, 
upon  the  appeal  of  corporations  resisting  State 
legislation.  In  that  case  the  plaintiff,  a  stockholder 
in  the  Commercial  Bank  of  Cleveland,  Ohio,  but  a 
resident  of  another  State,  filed  a  bill  in  chancery  in 
the  Circuit  Court  of  the  United  States  against  the 

1  Lehigh  Mining  and  Manufacturing  Company  vs.  Kelly,  160 
U.S.  330. 

2  3  Blackstone,  Com.  (Jones,  1553),  note. 

8  "A  Legal  Fiction  with  its  Wings   Clipped,"  American  Law 
Review,  XLI,  No.  38  (1907). 
4  18  Howard,  331. 


32        JOHN  ARCHIBALD  CAMPBELL 

directors  of  the  bank  and  the  tax  collector,  for  the 
purpose  of  enjoining  the  directors  from  paying,  and 
the  tax  collector  from  enforcing,  the  collection  of  a 
tax  imposed  by  the  Legislature  upon  the  bank.  The 
contention  was  that,  by  its  charter,  the  State  had 
entered  into  a  contract  binding  itself  to  a  system  of 
taxing  the  property  of  the  bank.  The  defendant  tax 
collector  challenged  the  jurisdiction  of  the  Court. 
The  Court  held  that  the  provisions  in  the  charter 
constituted  a  contract  which  prevented  the  Legisla 
ture  from  changing  the  method  of  taxing  the  prop 
erty  of  the  bank. 

Judge  Campbell  wrote  a  dissenting  opinion,  in 
which  Judges  Daniel  and  Catron  concurred.  Deny 
ing  the  right  of  a  stockholder  of  a  corporation,  with 
out  alleging  collusion,  fraud,  or  negligence  on  the 
part  of  the  directors,  to  invoke  the  interference  of  a 
court  of  equity,  respecting  the  management  of  the 
corporate  property,  Justice  Campbell  said:  "The 
allowance  of  this  plea  interposes  this  Court  between 
those  corporations  and  the  Government  of  the  peo 
ple  of  Ohio,  to  which  they  owe  their  existence  and  by 
whose  laws  they  derive  all  their  faculties.  It  will  es 
tablish  on  the  soil  of  every  State  a  caste  made  up  of 
combinations  of  men  for  the  most  part  under  the 
most  favorable  conditions  of  society,  who  will  ha 
bitually  look  beyond  the  institutions  and  authori 
ties  of  the  State,  to  the  central  Government  for  the 
strength  and  support  necessary  to  maintain  them  in 
the  enjoyment  of  their  special  privileges  and  exemp 
tions.  The  consequences  will  be  a  new  element  of 
alienation  and  discord  between  the  different  classes 


JUSTICE  OF  THE  SUPREME  COURT  33 

of  society,  and  the  introduction  of  a  fresh  cause  of 
disturbance  in  our  distracted  political  and  social 
system.  In  the  end  the  doctrine  of  this  decision  may 
lead  to  a  violent  overturn  of  the  whole  system  of  cor 
porate  combinations.  If  this  Court  is  to  have  an 
office,  so  transcendent  as  to  decide  finally  the  pow 
ers  of  the  people  over  persons  and  things  within  the 
State,  a  much  closer  connection  and  a  much  more 
direct  responsibility  of  its  members  to  the  people  is 
a  necessary  condition  for  the  safety  of  the  popular 
rights.  .  .  .  The  inquiry  recurs,  have  the  people  of 
Ohio  deposited  with  this  tribunal  the  authority  to 
overrule  their  own  judgment  upon  the  extent  of 
their  own  powers  over  institutions  created  by  their 
own  Government  and  commorant  within  the  State? 
The  fundamental  principle  of  the  American  Con 
stitution,  it  seems  to  me,  is  that  to  the  people  of  the 
several  States  belongs  the  resolution  of  all  questions 
—  whether  of  regulation,  compact,  or  punitive  jus 
tice  —  arising  out  of  the  action  of  their  municipal 
government  upon  their  citizens,  or  depending  upon 
their  constitutions  and  laws,  and  they  are  judges  of 
the  validity  of  all  acts  done  by  their  municipal  au 
thorities  in  the  exercise  of  their  sovereign  rights,  in 
either  case,  without  responsibility  or  control  from 
any  department  of  the  Federal  Government.  This,  I 
understand  to  be  the  import  of  the  municipal  sover 
eignty  of  the  people  within  the  State/' 

Discussing  the  suggestion  that,  in  order  to  protect 
the  corporation  against  popular  prejudice,  it  was 
necessary  that  the  jurisdiction  be  sustained,  he  says: 
"It  may  be  that  the  people  may  abuse  the  powers 


34        JOHN  ARCHIBALD  CAMPBELL 

with  which  they  are  invested,  and  even,  in  correct 
ing  the  abuses  of  their  Government,  may  not,  in 
every  case,  act  with  wisdom  and  circumspection. 
But,  for  my  part,  when  I  consider  the  justice,  mod 
eration,  the  restraints  upon  arbitrary  power,  the 
stability  of  social  order,  the  security  of  personal 
rights,  and  the  general  harmony  which  existed  in 
the  country  before  the  sovereignty  of  the  people  was 
a  living  and  operative  principle  and  governments 
were  administered  subject  to  the  limitations,  and 
with  reference  to  the  specific  ends  for  which  they 
were  organized,  and  their  members  recognized  then* 
responsibility  and  dependence,  I  feel  no  anxiety  nor 
apprehension  in  leaving  to  the  people  of  Ohio  a 
'  complete  power ;  over  their  Government  and  all 
the  instruments  and  establishments  it  has  called 
into  existence." 

In  Piqua  Branch  of  the  State  Bank  of  Ohio  vs. 
Knoop  *  was  presented  the  much-debated  question 
respecting  the  rule  which  should  control  in  constru 
ing  an  act  of  the  Legislature,  changing  the  method 
of,  or  imposing  upon  corporations,  taxation  other 
than  is  prescribed  in  the  charter,  and  the  extent  to 
which  such  provisions  are  contractual.  The  majority 
of  the  Justices  sustained  the  contention  of  the  bank. 
Judge  Campbell,  together  with  Judges  Catron  and 
Daniel,  dissented,  Daniel  adopting  the  opinion  of 
Judge  Campbell.  After  tracing  the  history  of  the 
struggle  in  England  for  the  preservation  of  the  rev 
enues  with  which  the  King  was  vested  in  trust  for 
the  people,  Judge  Campbell  says:  "The  rule  that 
1  16  Howard,  376. 


JUSTICE  OF  THE  SUPREME  COURT  35 

public  grants  convey  nothing  by  implication,  are 
construed  strictly  in  favor  of  the  sovereign,  do  not 
pass  anything  not  described,  that  general  words  shall 
never  be  so  construed  as  to  deprive  him  of  a  greater 
amount  of  revenue  than  he  intended  to  grant,  was 
not  the  inventions  of  the  craft  of  crown  lawyers, 
but  was  established  in  contests  with  crown  favor 
ites  and  impressed  upon  the  administration,  execu 
tive  and  judicial,  as  checks  for  the  people."  Refer 
ring  to  "the  sly  and  stealthy  arts  to  which  State 
Legislatures  are  exposed,  and  the  greedy  appetite  of 
adventurers  for  monopolies,  and  immunities  from 
the  State  right  of  government,"  he  says:  "We  do 
not  close  our  eyes  to  their  insidious  efforts  to  ignore 
the  fundamental  laws  and  institutions  of  the  State 
and  to  subject  the  highest  popular  interests  to  their 
central  boards  of  control,  and  directors'  manage 
ment.  .  .  .  The  subject  affects  the  public  order  and 
general  administration.  It  is  not  properly  a  matter 
for  bargain  or  barter,  but  their  enactment  is  in  the 
exercise  of  a  sovereign  power,  comprehending  within 
its  scope  every  individual  interest  in  the  State." 

The  struggle  so  long  maintained  in  the  courts  in 
respect  to  legislative  grants  of  immunity  from  tax 
ation  of  corporate  property,  based  upon  the  princi 
ple  announced  in  the  Dartmouth  College  case,  has, 
by  the  reservation  in  modern  State  Constitutions  of 
the  power  to  amend  or  repeal  charters,  to  a  large 
extent  come  to  an  end. 

In  Christ  Church  vs.  Philadelphia,1  Judge  Camp 
bell  stated  the  rule,  which  has  been  uniformly  ad- 

1  65  U.S.  300,  24  Howard,  300. 


36        JOHN  ARCHIBALD  CAMPBELL 

hered  to,  by  which  grants  of  special  privilege  and 
exemptions  from  taxation  should  be  construed,  say 
ing:  "A  statute  exempting  the  property  of  a  church 
from  taxation  is  privilegia  favorabilis  and  not  con 
tractual."  To  the  argument,  that  the  statute  should 
be  so  construed  as  to  make  the  exemption  perpetual, 
he  said:  " Such  an  interpretation  is  not  to  be  favored, 
as  the  power  of  taxation  is  necessary  to  the  existence 
of  the  State  and  must  be  exercised  according  to  the 
varying  conditions  of  the  Commonwealth.'7 

In  York  and  M.  Line  Railroad  vs.  Winans,1 
Judge  Campbell  wrote,  for  the  unanimous  Court,  an 
opinion  holding  that  a  railroad  company  could  not, 
by  farming  out  its  franchise  or  leasing  its  track, 
escape  liability  for  the  acts  of  its  lessee.  To  the  ob 
jection  of  the  company  that  the  cars  employed  were 
not  built  by  and  did  not  belong  to  it,  but  were  the 
exclusive  property  of  the  lessee;  that  the  agreement 
to  divide  profits  did  not  constitute  a  partnership 
nor  evince  a  relation  of  principal  and  agent,  he 
says:  "This  conclusion  implies  that  the  duties  im 
posed  upon  the  plaintiff  by  the  charter  are  fulfilled 
by  the  construction  of  the  road,  and  that  by  alien 
ating  its  right  to  use  and  its  power  of  control  and 
supervision,  it  may  avoid  further  responsibility.  But 
those  acts  involve  an  overturn  of  the  relations  which 
the  charter  has  arranged  between  the  corporation 
and  the  community.  Important  franchises  were  con 
ferred  upon  the  corporation  to  enable  it  to  provide 
the  facilities  to  communication  and  intercourse  re 
quired  for  the  public  convenience.  .  .  .  The  corpora- 

1  17  Howard,  30. 


JUSTICE  OF  THE  SUPREME  COURT  37 

tion  cannot  absolve  itself  from  the  performance  of 
its  obligations,  without  the  consent  of  the  Legisla 
ture."  This  doctrine  has  become  the  settled  law  of 
the  country. 

Judge  Campbell  found  himself  in  opposition  to 
the  trend  of  thought  and  judicial  progress  extending 
the  jurisdiction  of  the  Court  in  admiralty  causes.  To 
understand  correctly  the  conditions  regarding  that 
controversy  with  which  he  was  confronted,  a  short 
historical  sketch  of  the  decisions  made  prior  to  1852 
is  necessary. 

Prior  to  the  decision  in  Waring  vs.  Clarke,1  the  Su 
preme  Court  had  held  that  the  admiralty  jurisdic 
tion  conferred  upon  the  Federal  Courts  was  con 
fined  to  cases  arising  out  of  contracts  made,  or  to  be 
performed,  or  torts  occurring  on  the  sea  or  naviga 
ble  water,  within  the  ebb  and  flow  of  the  tide.  In  The 
Thomas  Jefferson,2  Judge  Story  said:  "This  is  the 
prescribed  limit  which  it  was  not  at  liberty  to  tran 
scend."  In  construing  the  grant  of  judicial  power 
"to  all  cases  of  admiralty  and  maritime  jurisdic 
tion,"  it  was  held  that  reference  must  be  had  to  the 
English  statutes  and  decisions  for  the  purpose  of 
defining  the  terms  used  by  the  Convention  of  1787. 
It  was  found  that  at  the  time  of  the  adoption  of 
the  Constitution,  the  jurisdiction  of  the  admiralty 
courts  in  England  was  confined  to  the  sea  and  wa 
ters  in  which  the  tide  ebbed  and  flowed,  and  that  the 
jurisdiction  was  prohibited  when  the  cause  of  action 
arose  infra  corpus  comitatus.  This  state  of  the  law 
was  the  result  of  a  long  and  at  times  spirited  contest 

i  5  Howard,  451.  2  10  Wheaton,  429  (1825). 


38        JOHN  ARCHIBALD  CAMPBELL 

between  the  common-law  courts  and  the  courts  of 
admiralty.  The  question  underwent  an  exhaustive 
examination,  by  Judge  Story,  presiding  in  the  Dis 
trict  Court  in  De  Lovio  vs.  Boit.1  This  learned  ju 
rist,  referring  to  the  conclusion  reached  by  him,  says 
that  jurisdiction  was  granted  in  "all  maritime  con 
tracts  whenever  made,  and  all  torts  and  injuries  on 
the  high  seas  or  in  ports  within  the  ebb  and  flow  of 
the  tide."  2 

In  his  opinion  in  The  Thomas  Jefferson,  Judge 
Story,  foreseeing  the  difficulties  which  would  be 
encountered  by  adhering  to  the  limitations  placed 
upon  the  jurisdiction  under  the  English  law,  in 
quired  whether,  under  the  power  to  regulate  com 
merce  between  the  States,  Congress  might  not  "ex 
tend  the  remedy  by  the  summary  process  of  the 
admiralty  to  the  case  of  voyages  on  the  western 
waters."  In  Waring  vs.  Clarke3  the  Court  held  that 
the  jurisdiction  in  admiralty  extended  to  a  collision 
on  the  Mississippi  River  within  the  ebb  and  flow 
of  the  tide,  although  infra  corpus  comitatus.  This  case 
was  argued  by  John  J.  Crittenden,  sustaining  the  ju 
risdiction,  and  Reverdy  Johnson,  contra.  The  ques 
tion  debated  and  decided  by  a  divided  Court  was 
whether  the  jurisdiction  extended  to  a  case  in  which 
the  collision  occurred  within  navigable  waters  in 
which  the  tide  ebbed  and  flowed  and  within  the  body 
of  a  county  in  a  State,  and  this  question,  it  was  con 
ceded,  was  "distinctly  presented  for  the  first  time 

1  2  Gall.  (C.C.)  398  (1815). 

8  Story,  W.  W.:  Life  and  Letters  of  Joseph  Story,  266. 

»  5  Howard,  451  (1846). 


JUSTICE  OF  THE  SUPREME  COURT  39 

to  the  Court."  Judge  Wayne,  writing  for  the  ma 
jority,  reviewed  the  English  statutes  and  decisions, 
together  with  the  Colonial  records  and  the  proceed 
ings  of  the  Convention  of  1787,  and  reached  the  con 
clusion  that  "the  grant  of  admiralty  power  to  the 
Courts  of  the  United  States  was  not  intended  to  be 
limited  or  to  be  interpreted  by  what  were  cases  of 
admiralty  jurisdiction  in  England  when  the  Consti 
tution  was  adopted,"  and  that  the  limitation  pro 
hibiting  the  jurisdiction  to  collisions  occurring  infra 
corpus  comitatus  did  not  apply.  To  this  conclusion 
Judge  Catron  gave  his  carefully  guarded  assent  lim 
ited  to  the  "precise  case  before  the  Court." 

Judge  Woodbury  filed  a  dissenting  opinion  cover 
ing  thirty-nine  pages,  in  which  Judges  Daniel  and 
Grier  concurred.  Emphasizing  the  line  of  cleavage 
between  the  members  of  the  Court  and  the  intensity 
of  the  conviction  of  the  dissenting  Justices,  Judge 
Woodbury,  after  stating  the  case,  says:  "A  great 
principle  at  the  foundation  of  our  political  system 
applies  strongly  to  the  present  case,  and  is,  that 
while  supporting  all  the  powers  clearly  granted  to 
the  general  Government,  we  ought  to  forbear  inter 
fering  with  what  has  been  preserved  to  the  States, 
and  in  cases  of  doubt  to  follow  where  that  principle 
leads,  unless  prevented  by  the  overruling  authority 
of  high  judicial  decisions."  He  carefully  confined  his 
opinion  to  the  question  of  jurisdiction  of  admiralty 
in  cases  of  tort,  and  distinguished  this  case  from  that 
decided  by  Judge  Story  in  De  Lovio  vs.  Boit,  in 
which  a  contract  constituted  the  subject-matter  of 
the  suit.  He  says:  "In  trespass  it  was  always  a  test, 


40        JOHN  ARCHIBALD  CAMPBELL 

not  only  that  it  happened  on  the  sea,  instead  of 
merely  tidewater,  but  out  of  the  body  of  a  county."  1 
Thus  was  inaugurated  in  the  Federal  Courts  the 
controversy  which,  in  other  forms,  but  involving 
the  same  divergence  of  thought,  had  been  waged  in 
England,  since  1361,  between  the  courts  proceeding 
according  to  the  course  of  the  common  law  and  those 
in  which  the  summary  proceedings  in  the  courts  of 
the  Lord  High  Admiral  and  his  deputies  prevailed.2 
By  the  Act  of  1845,  Congress  extended  the  juris 
diction  of  the  District  Courts  in  admiralty  to  mat 
ters  of  contract  and  tort  arising  in,  or  upon,  the 
lakes  and  navigable  waters  connecting  the  same. 
The  validity  of  this  statute  was  challenged  in  The 
Genesee  Chief.3  Chief  Justice  Taney,  writing  for  the 
majority  of  the  Court,  sustained  the  statute,  not,  as 
was  argued  it  should  have  been,  as  within  the  power 
vested  in  Congress  to  regulate  commerce,  but  as 
being  within  the  terms  of  the  grant  to  the  judicial 
power  to  cases  arising  in  admiralty  and  maritime 
jurisdiction.  The  act  gave  to  either  party  the  right 
to  demand  a  trial  by  jury.  There  can  be  no  doubt 
respecting  the  scope,  extent,  and  ground  upon  which 
the  decision  is  based.  The  Thomas  Jefferson  and 
cases  following  it  were  overruled.  Judge  Daniel  dis 
sented.  That  the  decision  was  not  based  upon  the 
statutory  jurisdiction,  but  upon  the  constitutional 

1  Carson,  H.  L.:  "  Great  Dissenting  Opinions,"  Report,  American 
Bar  Association  (1894),  284. 

2  Select  Essays,   Anglo-American  Legal  History,   u,   312;  Van 
Santvoord,  G.  W. :  Sketches  of  the  Lives,  Times,  and  Judicial  Services 
of  the  Chief  Justices  of  the  United  States,  604. 

3  12  Howard,  443  (1851). 


JUSTICE  OF  THE  SUPREME  COURT  41 

grant,  is  made  clear  by  the  decision  in  Fretz  vs.  Bull,1 
rendered  at  the  same  term,  wherein  a  collision  oc 
curred  on  the  Mississippi  River,  at  a  place  where  the 
tide  did  not  ebb  and  flow.  Judge  Wayne  says  that  the 
decision  in  The  Genesee  Chief  extended  the  jurisdic 
tion  to  cases  occurring  on  the  lakes  and  navigable 
rivers  of  the  United  States. 

In  Jackson  vs.  Magnolia,2  it  was  held,  by  a  di 
vided  Court,  that  a  collision  of  two  boats  in  naviga 
ble  water,  on  the  Alabama  River  two  hundred  miles 
above  tidewater,  and  in  a  county,  was  within  the 
jurisdiction  of  the  Admiralty  Court.  Justice  Grier 
referred  to  the  denial  of  the  jurisdiction  as  "only  a 
renewal  of  the  old  contest  between  courts  of  com 
mon  law  and  courts  of  admiralty  as  to  their  juris 
diction  within  the  body  of  a  county,"  as  " finally 
adjudicated  and  the  argument  exhausted."  To  the 
suggestion  that  the  jurisdiction  in  The  Genesee 
Chief  was  based  upon  the  statute,  he  said  it  was 
never  so  held.  To  the  argument  founded  upon  the 
English  law  defining  the  admiralty  jurisdiction  and 
defending  the  departure  made  by  the  American 
courts,  rejecting  the  ebb  and  flow  as  the  test  of  the 
limits  of  the  jurisdiction,  Justice  McLean,  concur 
ring,  said:  "  Antiquity  has  its  charms,  as  it  is  rarely 
found  in  the  common  walks  of  professional  life,  but 
it  may  be  doubted  whether  wisdom  is  not  more  fre 
quently  found  in  experience  and  the  gradual  prog 
ress  of  human  affairs;  this  is  especially  the  case  in  all 
systems  of  jurisprudence  which  are  matured  by  the 
progress  of  human  knowledge.  Whether  it  be  com- 

1  12  Howard,  466.  »  20  Howard,  296  (1857). 


42        JOHN  ARCHIBALD  CAMPBELL 

mon,  chancery,  or  admiralty  law,  we  should  be  more 
instructed  by  studying  its  present  adaptation  to 
human  concerns  than  to  trace  it  to  its  beginnings. 
Every  one  is  more  interested  and  delighted  to  look 
upon  the  majestic  and  flowing  river  than  by  follow 
ing  its  current  upward,  until  it  becomes  lost  in  its 
mountain  rivulets." 

These  views  did  not  receive  the  assent  of  the  more 
conservative  minds  of  Justices  Daniel,  Catron,  and 
Campbell. 

In  his  dissenting  opinion,  Judge  Campbell  calls 
attention  to  the  fact  that  the  collision  occurred  in 
Wilcox  County,  in  the  State  of  Alabama,  between 
two  steamboats  navigating  the  Alabama  River;  that 
the  river  flows  entirely  within  the  State  and  dis 
charges  itself  into  the  Mobile  River  and  through 
that,  and  the  Mobile  Bay,  connects  itself  with  the 
Gulf  of  Mexico;  that  the  collision  occurred  two  hun 
dred  miles  above  the  ebb  and  flow  of  the  tide;  that 
no  port  of  entry  had  been  established.  He  began  the 
discussion  by  stating  that,  in  his  opinion,  the  Court 
assumed  a  jurisdiction  over  a  case  cognizable  only 
at  the  common  law  and  trial  by  a  jury,  and  that  the 
decisions  contravened  a  large  number  of  decisions  of 
the  Court  based  upon  elaborate  argument  and  ma 
ture  decision  which  constituted  a  rule  of  decision  to 
the  Court.  After  quoting  the  provisions  of  the  Con 
stitution  guaranteeing  trial  by  jury  in  all  actions  at 
common  law  when  the  value  in  controversy  ex 
ceeded  twenty  dollars,  he  said:  " These,  and  other  of 
like  kind,  identify  the  men  of  the  Revolution  as  the 
descendants  of  ancestors  who  had  maintained  for 


JUSTICE  OF  THE  SUPREME  COURT  43 

many  centuries  a  persevering  and  magnanimous 
struggle  for  a  constitutional  government,  in  which 
the  people  should  directly  participate,  and  which 
should  secure  to  their  posterity  the  blessings  of  lib 
erty.  The  supremacy  of  those  courts  of  justice  that 
acknowledged  the  right  of  the  people  to  share  in 
their  administration  and  directed  their  administra 
tion  according  to  the  course  of  the  common  law,  in 
all  the  material  subjects  of  litigation  —  of  that  com 
mon  law  which  sprung  from  the  people  themselves, 
and  is  legitimate  by  that  highest  of  all  sanctions,  the 
consent  of  those  who  are  submitted  to  it  —  of  that 
common  law  which  resulted  from  the  habitual 
thoughts,  usages,  conduct,  and  legislation  of  a  prac 
tical,  brave,  and  self -relying  race  —  was  established 
in  England  and  the  United  States  only  by  their  per 
severing  and  heroic  exertions  and  sacrifices." 

He  proceeds  to  give  an  interesting  history  of  the 
struggle,  beginning  in  the  reign  of  Richard  II  be 
tween  the  Commons  and  the  great  military  officers 
who  administered  justice  by  virtue  of  their  seignio 
rial  powers  —  the  Lords  Constable  and  the  Earl 
Marshal  and  the  Lord  High  Admiral,  quoting  the 
Statute  of  8th  and  13th  Richard  II,  which  excluded 
from  the  realm  the  odious  system  of  the  Continent 
and  declared,  "that  the  Admiral  should  not  meddle 
with  anything  done  within  the  realm,  but  only  with 
things  done  upon  the  sea."  This  act  not  accomplish 
ing  its  purpose,  another  was  enacted,  declaring 
"that  the  Court  of  Admiralty  hath  no  manner  of 
cognizance,  power,  nor  jurisdiction  of  any  manner 
of  contract,  plea,  or  ground  arising  within  the  bod- 


44        JOHN  ARCHIBALD  CAMPBELL 

ies  of  the  counties.  .  .  .  But  that  all  manner  of  con 
tracts,  pleas,  and  grounds  shall  be  tried,  determined, 
discussed,  and  remedied  by  the  laws  of  the  land  and 
not  before  nor  by  the  Admiral  or  his  Lieutenant,  in 
no  manner."  By  these  and  other  statutes  of  like 
kind,  the  common  law  of  the  realm  was  placed  upon 
an  eminence  and  the  Commons  enabled  to  plead 
with  authority  against  other  encroachments  and 
usurpations  upon  the  general  liberty.  The  struggle 
for  the  supremacy  of  courts  proceeding  according  to 
the  course  of  the  common  law  with  the  Star  Cham 
ber  and  High  Commission  Court  continued  until  the 
Revolution  of  1640,  when  the  latter  were  overthrown 
and  trials  secured  in  the  ordinary  courts  of  justice 
and  by  the  ordinary  course  of  the  law. 

Judge  Campbell  insisted  that,  in  the  midst  of  that 
contest,  the  settlements  were  formed  in  America, 
and  the  fruits  of  the  struggle  were  incorporated  into 
the  Declaration  of  Independence  and  the  Constitu 
tion;  that  the  grant  of  jurisdiction  to  the  Federal 
Courts  of  all  cases  "of  admiralty  and  maritime 
jurisdiction"  must  be  construed  in  the  light  of  the 
admiralty  jurisdiction  as  it  existed  in  England. 
Following  an  interesting  history  of  the  discussions 
in  the  Colonial  assemblies,  the  Convention  of  1787, 
and  the  State  Conventions,  including  the  language 
used  by  Hamilton  in  the  "Federalist,"  he  says:  "It 
did  not  enter  into  the  imagination  of  any  opponent 
of  the  Constitution  to  conceive  that  a  jurisdiction 
which,  for  centuries,  had  been  sternly  repelled  from 
the  body  of  any  county,  could,  by  any  authority, 
artifice,  or  device,  assume  a  jurisdiction  through  the 


JUSTICE  OF  THE  SUPREME  COURT  45 

whole  extent  of  every  lake  and  water-course  within 
the  limits  of  the  United  States."  He  refers  to  the 
opinion  of  Judge  Story,  in  De  Lovio  vs.  Boit,  as 
"  celebrated  for  its  research,  and  remarkable,  in  my 
opinion,  for  its  boldness  in  asserting  novel  conclu 
sions  and  the  facility  with  which  authentic  historical 
evidence  that  contradicted  them  is  disposed  of." 
After  a  critical  discussion  of  the  case,  he  says:  "The 
error  of  the  opinion  in  De  Lovio  vs.  Boit  on  this  sub 
ject,  in  my  judgment,  consists  in  its  adoption  of  the 
harsh  and  acrimonious  censures  of  discarded  and 
discomfited  civilians  on  the  conduct  of  the  great 
patriots  of  England,  whose  courage,  sagacity,  and 
patriotism  secured  the  rights  of  her  people,  as  an 
evidence  of  historical  facts." 

He  concludes  with  the  following  spirited  state 
ment  of  his  views:  "The  people  of  the  several  States 
have  retained  the  popular  element  of  the  judicial  ad 
ministration  of  England  and  the  attachment  of  her 
people  to  the  institutions  of  local  self-government. 
In  Alabama  the  trial  by  jury  is  preserved  inviolate, 
that  being  regarded  as  an  essential  principle  of  local 
self-government.  In  the  Court  of  Admiralty  the  peo 
ple  have  no  place  as  jurors.  A  single  Judge,  deriving 
his  appointment  from  an  independent  Government, 
administers  in  that  Court  a  code  which  a  Federal 
Judge  has  described  as  'resting  upon  the  general 
principles  of  maritime  law,  and  that  it  is  not  compe 
tent  to  the  States,  by  any  local  legislation,  to  en 
large  or  limit  or  narrow  it.'  If  the  principle  of  this 
decree  is  carried  to  its  logical  extent,  all  cases  arising 
in  the  transportation  of  property  or  persons  from 


46        JOHN  ARCHIBALD  CAMPBELL 

the  towns  and  landing-places,  whether  in  or  out  of 
the  State,  all  cases  of  tort  or  damage  arising  in  the 
navigation  of  the  internal  waters,  whether  involving 
the  security  of  persons  or  title  to  property,  .  .  .  will 
be  cognizable  in  the  District  Courts  of  the  United 
States.  If  the  dogma  of  Judges  in  regard  to  the  sys 
tem  of  laws  to  be  administered  prevails,  then  this 
whole  class  of  cases  may  be  drawn  ad  aliud  examen 
and  placed  under  the  dominion  of  a  foreign  code 
whether  they  arise  among  citizens  or  others.  The  States 
are  deprived  of  the  power  to  mould  their  own  laws  in 
respect  to  persons  and  things  within  their  own  lim 
its,  and  which  are  appropriately  subject  to  their  own 
sovereignty.  The  right  of  the  people  to  self-govern 
ment  is  thus  abridged  —  abridged  to  the  precise 
extent  that  a  Judge  appointed  by  another  Govern 
ment  may  impose  a  law,  not  sanctioned  by  the  rep 
resentatives  or  agents  of  the  people,  upon  the  citi 
zens  of  the  States.  Thus  the  contest  here  assumes 
the  same  significance  as  in  Great  Britain,  and  in  its 
last  analysis  involves  the  question  of  the  right  of  the 
people  to  determine  their  own  laws  and  legal  insti 
tutions."  He  says  that  he  has  applied  the  law  as  set 
tled  in  The  Genesee  Chief,  which  he  distinguished 
from  this  case  in  deference  to  the  principle  of  stare 
decisis,  although  a  portion  of  the  reasons  assigned 
did  not  satisfy  his  judgment,  but  that  he  considers 
"that  the  present  case  carries  the  jurisdiction  to  an 
incalculable  extent  beyond  any  other  and  all  others 
that  have  heretofore  been  pronounced." 

It  was  inevitable,  for  the  reasons  stated  by  Chief 
Justice  Taney  in  The  Genesee  Chief,  that  the  limita- 


JUSTICE  OF  THE  SUPREME  COURT  47 

tion  placed  by  the  earlier  decisions  on  the  jurisdic 
tion  of  the  Admiralty  Court  would  be  abandoned. 
Referring  to  these  decisions  he  said:  "  It  is  evident 
that  a  definition  that  would,  at  this  day,  limit  pub 
lic  rivers  in  this  country  to  tidewater,  is  utterly  in 
admissible.  We  have  thousands  of  miles  of  public 
navigable  water,  including  lakes  and  rivers,  in 
which  there  is  no  tide.  And  certainly  there  can  be  no 
reason  for  admiralty  power  over  a  public  tidewater 
which  does  not  apply  with  equal  force  to  any  other 
public  water  used  for  commercial  purposes  and  for 
eign  trade. " 

Construing  the  language  of  the  Constitution,  in 
accordance  with  the  rule  which  requires  the  Court 
to  look  to  the  meaning  of  the  terms  used  in  the  juris 
prudence  of  England  at  the  date  of  the  Constitution 
or  statute  invoked  by  the  Chief  Justice  in  the  Dred 
Scott  case,  the  dissenting  Judges  had  the  best  of  the 
historical  argument.  The  opinions  are,  however,  in 
teresting  to  the  student  as  illustrative  of  the  diver 
gent  canons  of  construction  of  our  Constitution  and 
the  cast  of  mind  of  the  Judges. 

The  last  echo  of  the  phase  of  the  controversy  in 
which  Judge  Campbell  took  part  is  found  in  the  dis 
senting  opinion  of  Chief  Justice  Taney  in  Taylor  vs. 
Caryll.1  The  sole  question  presented  and  decided  in 
that  case  was  that  where  a  vessel  had  been  seized  by 
the  sheriff  under  a  process  of  foreign  attachment 
sued  out  of  the  State  Court  in  an  action  for  damages 
and  a  motion  pending  in  that  Court  for  an  order  of 
sale,  a  libel,  filed  in  the  District  Court  of  the  United 

1  20  Howard,  583. 


48        JOHN  ARCHIBALD  CAMPBELL 

States  for  mariner's  wages  and  process  issued  under 
it,  could  not  divest  the  authorities  of  the  State  of 
their  authority  over  the  vessel;  that  the  sale  made 
by  the  sheriff  conveyed  a  valid  title  against  the  pur 
chaser  at  a  sale  made  by  the  marshal.  Justice  Camp 
bell  wrote  the  opinion  for  a  majority  of  the  Court. 
No  question  was  raised  or  discussed  regarding  the 
priority  of  the  lien  on  the  vessel  for  the  mariner's 
wages.  Chief  Justice  Taney  wrote  the  dissenting 
opinion  in  which  Justices  Wayne,  Grier,  and  Clif 
ford  concurred.  He  evidently  thought  that  the  last 
word  in  support  of  the  decision  in  Jackson  vs.  Mag 
nolia  had  not  been  said.  After  a  well-sustained  dis 
cussion  of  the  question  at  issue  in  the  case,  he  pro 
ceeds  to  a  spirited  defense  of  the  jurisdiction  of  the 
admiralty.  He  opens  the  subject  by  saying:  "I  am 
sensible  that,  among  the  highest  and  most  enlight 
ened  minds,  which  have  been  nurtured  and  trained 
in  the  studies  of  the  common  law,  there  is  a  jealousy 
of  the  admiralty  jurisdiction,  and  that  the  principles 
of  the  common  law  are  regarded  as  favorable  to  per 
sonal  liberty  and  personal  rights  and  those  of  the  ad 
miralty  as  tending  in  a  contrary  direction.  And  under 
the  influence  of  this  opinion,  they  are  apt  to  consider 
any  restriction  upon  the  power  of  the  latter  as  so  much 
gained  to  the  cause  of  free  institutions."  He  notes 
that  Sir  Edward  Coke  had  contributed  to  the  creation 
of  these  opinions,  and  quotes  the  statement  of  Mr. 
Justice  Buller,  in  Smart  vs.  Wolfe,1  that  the  opinions 
of  Coke  on  the  subject  had  been  received  "with 
great  caution  and  frequently  contradicted." 

1  3  T.  R.  348. 


JUSTICE  OF  THE  SUPREME  COURT    49 

Following  an  interesting  history  of  the  conflict  in 
England,  the  Chief  Justice  concludes:  "If  we  are  to 
look  to  England  for  an  example  of  enlightened  pol 
icy  in  the  Government,  and  a  system  of  jurispru 
dence  suited  to  the  wants  of  a  great  commercial  na 
tion,  or  just  and  impartial  laws  by  judicial  tribunals 
upon  principles  most  favorable  to  civil  liberty,  I 
should  not  look  to  the  reigns  of  Richard  II  or  Henry 
IV  or  Henry  VIII  for  either.  I  should  rather  expect 
to  find  examples  worthy  of  respect  and  commenda 
tion  in  the  England  of  the  present  day,  in  her  statute 
of  3d  and  4th  Victoria,  in  the  elevated  and  enlight 
ened  character  of  its  present  courts  of  justice  and 
their  mutual  respect  and  consideration  for  the  acts 
and  authority  of  each  other,  without  any  display  of 
jealousy  or  suspicion." 

This  portion  of  the  opinion  is  spirited,  strong,  and 
manifestly  written  as  an  answer  to  the  dissenting 
opinion  of  Judge  Campbell.  In  both  opinions  the 
authors  were  at  their  best.  They  are  valuable  con 
tributions  to  the  interesting  history  of  the  struggle 
between  those  who  held  opposing  views  respecting 
the  construction  of  the  grants  of  judicial  power  by 
the  Federal  Constitution. 

Judge  Campbell  did  not  further  resist  the  current 
of  decisions  which,  during  his  term  on  the  Bench, 
extended  the  admiralty  jurisdiction.  He  concurred 
in  the  decision  which  enforced  the  limitation  placed 
by  Judge  Taney  in  The  Genesee  Chief  upon  the  ju 
risdiction  to  matters  in  contract  and  tort  arising  in 
business  of  commerce  and  navigation  between  ports 
and  places  in  different  States  and  Territories,  upon 


50        JOHN  ARCHIBALD  CAMPBELL 

the  lakes  and  navigable  waters.1  The  suggestion, 
that  the  commerce  clause  limited  the  grant  of  judi 
cial  power  in  cases  of  admiralty  and  maritime  juris 
diction,  was  denied  in  The  Commerce; 2  and  in  an 
exhaustive  discussion  by  Judge  Bradley  and  Judge 
Clifford  in  The  Lottawanna,3  in  which  the  decided 
cases  were  reviewed,  it  is  said  that  in  cases  of  tort 
the  question  of  jurisdiction  is  wholly  unaffected  by 
the  consideration  that  the  ship  was  not  engaged  in 
foreign  commerce  or  in  commerce  between  the 
States;  that  the  jurisdiction,  whether  the  cause  of 
action  is  contract  or  tort,  does  not  depend  upon  the 
regulation  of  commerce. 

With  the  death  of  Judge  Daniel,  the  retirement 
of  Judge  Campbell,  and  the  coming  of  Judges  who 
accepted  the  later  construction  of  the  Constitution, 
opposition  to  the  enlarged  jurisdiction  ceased,  and 
it  was  extended  without  dissent.  The  result  of  the 
debate  is  well  stated  by  Judge  Bradley,  referring  to 
the  duty  of  the  Court  to  determine  the  true  limits  of 
the  admiralty  jurisdiction.  He  says:  "This  bound 
ary  is  to  be  ascertained  by  a  reasonable  and  just 
construction  of  the  words  used  in  the  Constitution, 
taken  in  connection  with  the  whole  instrument  and 
the  purpose  for  which  admiralty  and  maritime  juris 
diction  was  granted  to  the  Federal  Government. 
Guided  by  these  sound  principles,  this  Court  has 
felt  itself  at  liberty  to  recognize  the  admiralty  juris 
diction  as  extending  to  localities  and  subjects  which, 
by  the  jealousy  of  the  common  law,  were  prohibited 

1  Allen  vs.  Newberry,  21  Howard,  244. 

2  1  Black,  578.  3  21  Wall.  558. 


JUSTICE  OF  THE  SUPREME  COURT    51 

to  it  in  England,  but  which  fairly  belong  to  it  on 
every  ground  of  reason  when  applied  to  the  peculiar 
circumstances  of  this  country,  with  its  extended 
territories,  its  inland  seas,  and  its  navigable  rivers, 
especially  as  the  narrow  restrictions  of  the  English 
law  had  never  prevailed  on  this  side  of  the  Atlantic, 
even  in  Colonial  times."  1 

While,  under  the  extended  jurisdiction  a  vast 
number  of  cases  involving  maritime  torts  and  con 
tracts,  arising  on  navigable  rivers,  find  their  way 
into  the  Admiralty  Courts,  the  absorption  of  the 
jurisdiction  of  the  State  Courts  in  cases  of  this  char 
acter,  apprehended  by  Judge  Campbell  and  those 
Judges  who  concurred  with  his  opposition  to  the 
modern  rule,  has  been  largely  limited  by  the  devel 
opment  of  the  railroads  over  the  country,  in  many 
sections  absorbing  the  carrying  of  inland  trade  and 
commerce. 

The  case  of  Florida  vs.  Georgia  2  gave  to  Judge 
Campbell  an  opportunity  to  express  his  views  re 
garding  the  jurisdiction  of  the  Court  upon  which  it 
was  his  fortune  later  on  to  exert  a  potent  influence 
and  add  to  his  fame.  Based  upon  the  jurisdiction 
conferred  by  the  Constitution  in  controversies  be 
tween  different  States,  a  bill  in  equity  was  filed  by 
the  State  of  Florida  against  the  State  of  Georgia  for 
the  purpose  of  having  a  controversy  respecting  the 
boundary  between  the  two  States  adjudicated  and 

1  21  Wall.  576.  For  an  interesting  reference  to  the  "lack  of  har 
mony  among  the  Judges  "  in  cases  relating  to  the  extension  of  the 
admiralty  jurisdiction  see  H.  L.  Carson:  "  Great  Dissenting  Opin- 
ions,"  Report,  Am.  Bar  Asso.  (1894),  284. 

2  17  Howard,  478. 


52        JOHN  ARCHIBALD  CAMPBELL 

settled.  The  Attorney-General  of  the  United  States, 
Caleb  Gushing,  asked  permission  to  intervene  and 
assert  the  claim  of  the  United  States  to  a  portion  of 
the  territory  in  dispute.  To  the  decision  granting 
the  prayer,  Chief  Justice  Taney,  Judge  Daniel, 
Judge  Curtis,  and  Judge  Campbell  dissented.  The 
last  two  filed  opinions,  both  insisting  that,  upon 
well-settled  rules  of  equity  practice,  a  person  seek 
ing  to  intervene  in  a  case  should  be  made  a  party 
and  become  bound  by  the  decree.  The  Attorney- 
General  disclaimed  any  purpose  or  power  to  make 
the  United  States  a  party  to  the  cause.  Counsel  for 
both  States  objected  to  the  intervention.  Judge 
Campbell  said:  "I  do  not  admit  that  the  Attorney- 
General  has  any  corporate  or  judicial  character,  or 
that  he  can  be  introduced  into  the  record,  as  an  ac 
tor  or  respondent  in  a  suit.  His  duties  are  strictly 
professional  duties,  and  his  powers  those  of  an  at 
torney  at  law.  Whatever  he  may  do  for  the  United 
States,  a  special  attorney  might  be  retained  to  do; 
nor  can  the  United  States  appear  in  his  name,  or  by 
his  agency,  in  cases  where  they  may  not  be  a  party." 
Following  an  exhaustive  discussion  of  the  relation 
between  the  States  and  the  United  States  in  respect 
to  the  jurisdiction  of  the  Federal  Judiciary,  he  con 
cluded  with  a  spirited  assertion  of  judicial  independ 
ence  of  executive  interference,  saying:  "Nor  do  I 
perceive  that  the  Executive  Department  has  any 
title  to  disturb  the  parties  or  the  Court,  with  the 
expression  of  anxieties  or  apprehensions  that  the 
Court  will  be  lured  to  perform  what  Congress  alone 
may  do,  or  that  these  constitutional  conditions  will 


JUSTICE  OF  THE  SUPREME  COURT    53 

not  be  honorably  fulfilled.  The  existence  of  this  Fed 
eral  Government,  in  its  whole  extent,  is  a  testimo 
nial  to  a  magnanimous  and  disinterested  polity  of  the 
States  of  the  Union ;  nor  is  the  concession  which  sub 
mits  to  a  tribunal  of  justice  between  sovereign 
States  the  least  weighty  of  the  proofs  of  those  dispo 
sitions,  It  seems  to  me  that  it  is  the  duty  of  this 
Court  to  come  to  the  exercise  of  the  jurisdiction  the 
States  have  conferred,  in  the  same  spirit;  to  exercise 
according  to  the  letter  of  their  submission,  to  ex 
clude  from  it  suspicions,  jealousies,  interventions 
from  any  authority,  but  to  meet  the  parties  to  the 
controversy  with  confidence." 


CHAPTER  III 

THE  SLAVERY  QUESTION  BEFORE  THE  COURT 

PROBABLY,  in  the  judicial  and  political  history  of  the 
United  States,  no  decision  of  the  Supreme  Court  has 
been  so  much  discussed,  so  vigorously  and  bitterly 
attacked,  as  that  rendered  at  the  December  Term, 
1856,  known  and  usually  referred  to  as  the  "Dred 
Scott  case."  It  appears  on  the  records  of  the  Court 
as  Scott  vs.  Sanford,1  and  occupies  two  hundred  and 
forty  printed  pages  of  the  volume.  The  length  of  the 
opinions  filed  by  the  Justices  is  indicated  by  the  fact 
that  the  pleadings  and  statements  upon  which  the 
case  was  submitted  and  argued  occupy  but  two 
pages,  and  the  reporter  regretted  that,  for  "want  of 
room,"  the  briefs  and  arguments  of  counsel,  at  that 
time  usually  printed  at  length,  "are  omitted."  It 
has  been  well  said  that  the  case  "convulsed  the 
whole  country  from  one  end  to  the  other,  and  is  still 
spoken  of  and  discussed  with  heat,  and  frequently 
with  a  degree  of  ignorance  as  to  the  real  points  ruled 
in  it  equal  to  the  warmth  and  feeling  exhibited."  2 

It  is  not  the  purpose  nor  within  the  scope  of  this 
volume  to  discuss  the  merits  or  correctness  of  the 
opinions  written  by  either  the  majority  or  the  dis 
senting  Judges.  There  is  no  phase  of  the  case,  as  it 
was  disposed  of  by  the  Supreme  Court,  in  which 
those  agreed  whose  feelings  were  enlisted.  As  sug- 

1  19  Howard,  393. 

2  Constitutional  History  as  seen  in  American  Law,  179. 


THE  SLAVERY  QUESTION  55 

gested,  the  controversy  has  been  as  fierce  in  respect 
to  what  was  decided  as  to  the  merits  of  the  decision. 
One  of  the  attorneys  who  argued  the  case  insists 
that  it  is  inaccurate  to  refer  to  the  disposition  of  the 
case  as  a  "  decision. "  It  was  at  the  time,  and  is  now, 
strongly  insisted  by  those  who  differed  from  the 
views  of  the  majority  of  the  Judges  that  their  opin 
ions  are  nothing  more  than  obiter  dicta.  The  author 
of  the  " Memoir'7  of  Chief  Justice  Taney  devotes 
much  space  to  his  vindication  from  the  "wild  and 
willing  imaginations  of  the  party  in  whose  path  the 
decision  was  a  stumbling-block."  1  The  author  of 
the  biography  of  the  Judge  who  wrote  the  principal 
dissenting  opinion  says  that  he  writes  "a  full  and 
circumstantial  account  of  the  case,  because  the  ac 
tion  of  the  learned  Judge  has  sometimes  been  mis 
understood,  and,  as  he  expressed  it  in  his  last  illness, 
a  sense  that  some  injustice  has  been  done  to  him  in 
connection  with  this  case,  which  he  expected  those 
who  were  to  come  after  him  to  repair. "  2  Adopting 
the  suggestion  of  Mr.  George  Ticknor  Curtis,  who 
used  this  language,  that  "the  time  has  come  when 
justice  can  be  done  to  those  who  have  passed  away 
and  when  history  can  perform  its  appropriate  of 
fice,"  and  for  no  other  reason,  it  is  deemed  proper  to 
give  a  short  history  of  the  case  and  the  opinion  of 
Judge  Campbell  upon  the  questions  argued  before 
the  Court,  and  which  he  thought  called  for  discus 
sion,  together  with  his  interpretation  of  the  course 
pursued  by  the  other  Justices  which  has  given  rise 

1  Tyler,  Samuel:  Memoir  of  Roger  Brooke  Taney,  376. 

J  Curtis,  G.  T.:  A  Memoir  of  Benjamin  Rdbbins  Curtis,  i,  195. 


56        JOHN  ARCHIBALD  CAMPBELL 

to  much  controversy  and,  probably,  injustice  to 
them. 

Dred  Scott,  a  negro,  resident  of  the  State  of  Mis 
souri,  and  claiming  to  be  a  citizen  thereof,  brought 
an  action  in  the  Circuit  Court  of  the  United  States 
for  the  District  of  Missouri  against  John  F.  A.  San- 
ford,  who  claimed  to  be  his  owner,  a  citizen  of  the 
State  of  New  ^York.  In  his  declaration  he  alleged, 
in  three  separate  counts,  that  the  defendant  had 
assaulted  him,  his  wife,  and  his  two  daughters,  for 
which  he  claimed  damages.  The  defendant  chal 
lenged  the  jurisdiction  of  the  Court  by  a  special  plea 
in  abatement,  setting  forth  the  facts  from  which  he 
insisted  the  legal  result  followed  that  Scott  was  not 
a  citizen  of  the  State  of  Missouri.  To  this  plea  the 
plaintiff  demurred,  thereby  admitting  the  facts  set 
out  in  the  plea.  The  Court  sustained  the  demurrer 
and  required  the  defendant  to  plead  to  the  merits, 
which  he  did  by  filing  the  plea  of  "not  guilty."  The 
parties  being  thus  at  issue,  they  submitted  the  case 
to  the  decision  of  the  Court  upon  an  agreed  state  of 
facts.  The  facts  which  are  material  to  an  under 
standing  of  the  points  argued  and  decided  are: 

In  the  year  1834,  Scott  was  a  negro  slave,  the 
property  of  Dr.  Emerson,  a  surgeon  in  the  United 
States  Army.  During  that  year  Dr.  Emerson,  in  the 
discharge  of  his  duty  as  an  officer  of  the  army,  went 
to  the  military  post  at  Rock  Island  in  the  State  of 
Illinois,  taking  Scott  with  him.  He  remained  there 
until  May,  1836,  when  he  removed,  taking  Scott 
with  him,  to  Fort  Snelling,  situate  on  the  west  bank 
of  the  Mississippi  River,  in  the  territory  known  as 


THE  SLAVERY  QUESTION  57 

Upper  Louisiana,  acquired  by  the  United  States 
from  France,  north  of  latitude  thirty-six  degrees 
and  thirty  minutes  north,  and  north  of  the  State  of 
Missouri.  Dr.  Emerson  held  Scott  at  Fort  Snelling 
until  1838.  In  1835  Harriet  was  the  negro  slave  of 
Major  Taliaferro,  an  officer  of  the  army.  In  that 
year  he  took  Harriet  to  Fort  Snelling  and  held  her 
there  as  a  slave  until  1836,  when  he  sold  her  to  Dr. 
Emerson,  who  held  her  in  slavery  at  Fort  Snelling 
until  1838.  In  1836  Scott  and  Harriet,  with  the  con 
sent  of  Dr.  Emerson,  were  married,  and  the  two 
children  named  in  the  declaration  were  the  issue  of 
such  marriage.  Eliza  was  born  on  a  boat  north  of 
Missouri.  Lizzie  was  born  in  Missouri.  In  1838  Dr. 
Emerson  returned  to  Missouri,  bringing  Scott  and 
his  wife  and  child  Eliza  with  him,  where  they  con 
tinued  to  reside  until  the  institution  of  the  action. 
Before  the  commencement  of  the  suit,  Dr.  Emerson 
sold  and  conveyed  Scott  and  his  wife  and  children  to 
defendant,  who  had  since  the  purchase  held  them  in 
Missouri  as  his  slaves.  The  assault  was  admitted  to 
the  extent  necessary  to  present  the  question  of  law. 
It  was  also  admitted  that  Scott,  before  the  institu 
tion  of  this  action,  brought  suit  upon  the  same  facts 
in  the  State  Court  and  recovered  judgment  against 
defendant  which,  on  appeal  to  the  Supreme  Court 
of  the  State,  was  reversed,  and  that  case  was  then 
pending  in  the  State  Court. 

The  Court  upon  the  agreed  facts  instructed  the 
jury  to  return  a  verdict  for  the  defendant,  and  from 
judgment  rendered  thereon  a  writ  of  error  was  sued 
out  to  the  Supreme  Court  of  the  United  States.  The 


58        JOHN  ARCHIBALD  CAMPBELL 

case  was  twice  argued.  On  the  second  argument 
Montgomery  Blair  and  George  T.  Curtis  repre 
sented  Scott  and  Henry  S.  Geyer  and  Reverdy 
Johnson  represented  the  defendant.  After  the  first 
argument,  differences  of  opinion  were  found  to  exist, 
and  because  of  the  importance  of  the  questions  in 
volved  a  reargument  was  ordered.  The  Court  pre 
pared  and  directed  argument  upon  two  questions: 

"  1st,  Had  the  Circuit  Court  of  the  United  States 
jurisdiction  to  hear  and  determine  the  case  between 
these  parties;  and 

"2d,  If  it  had  jurisdiction,  is  the  judgment  it  has 
given  erroneous  or  not?" 

The  decision  of  the  case  depended  upon  the  an 
swer  to  these  two  questions.  It  is  difficult,  reading 
the  record  and  the  questions  so  clearly  stated,  to 
understand  why  the  answer  should  have  called 
forth  opinions  by  the  members  of  the  Court,  cover 
ing  more  than  two  hundred  pages,  and  why  the  an 
swer  given  by  the  majority  of  the  Judges  hastened, 
if  it  did  not  directly  result  in  the  attempted  seces 
sion  of  eleven  States  from  the  Union,  followed  by 
civil  war,  lasting  four  years,  resulting  in  the  eman 
cipation  of  every  slave  in  the  United  States.  Politi 
cal  parties  of  national  scope  were  disrupted  and  new 
ones  formed,  as  the  result  of  this  apparently  simple 
controversy.  It  is  manifest  that  the  answer  to  the 
first  question  was  dependent  upon  the  answer  to  a 
primary  question,  whether  a  person  of  African  de 
scent  was  within  the  meaning  of  the  term  " citizen" 
as  used  in  the  Constitution  and  entitled  to  bring  and 
maintain  a  suit  in  the  Circuit  Court  of  the  United 


THE  SLAVERY  QUESTION  59 

States.  The  solution  of  this  question  did  not  neces 
sarily  involve  the  status  as  to  slavery  or  freedom  of 
Scott.  If,  because  of  his  African  descent,  he  was  not 
a  "citizen,"  the  plea  in  abatement  was  valid  without 
regard  to  his  status,  and  the  Circuit  Court  should 
have  dismissed  the  action  for  want  of  jurisdiction, 
there  being  in  that  event  no  diversity  of  citizenship 
which  was  the  essential  basis  of  jurisdiction. 

The  Supreme  Court,  however,  found  itself  con 
fronted  with  a  question  of  practice  to  be  disposed  of 
before  proceeding  to  dispose  of  the  question  pre 
sented  by  the  plea  in  abatement.  It  was  insisted 
that,  because  the  Circuit  Court  sustained  the  de 
murrer  to  the  plea  and  required  the  defendant  to 
plead  to  the  merits,  he  could  not  rely  upon  the  plea 
in  abatement  in  the  Supreme  Court;  that  the  plea 
was  not,  upon  the  record,  before  the  Court.  This 
question  the  Chief  Justice  disposed  of,  holding  that 
the  plea  was  before  the  Court.  There  would  seem  to 
be  no  reasonable  doubt  that  the  Court  was  com 
pelled  to  examine  and  pass  upon  the  question  of 
jurisdiction.  The  validity  of  the  plea  involved  the 
question  whether  Scott  was  a  "  citizen."  This  pre 
sented  the  inquiry  whether,  at  the  date  of  the  adop 
tion  of  the  Constitution,  a  negro  or  person  of  African 
birth  or  descent  was  included  in  the  word  " citizen," 
as  used  by  its  framers.  The  principal  discussion  upon 
this  question  is  found  in  the  opinion  of  Chief  Justice 
Taney  and  in  the  dissenting  opinion  of  Justice  Cur 
tis.  Both  these  Judges  examined  the  question  from 
the  historical  and  other  points  of  view,  with  thor 
oughness  and  ability.  Each  found  much  to  sustain 


60        JOHN  ARCHIBALD  CAMPBELL 

his  contention.  Judge  Curtis  contended  that  the 
facts  set  out  in  the  special  plea  did  not  exclude  the 
conclusion  that,  notwithstanding  Scott's  African 
descent,  he  might,  by  manumission  or  otherwise, 
have  been  a  freeman.  He  insisted  that  the  historical 
evidence  did  not  exclude  Scott  from  citizenship  be 
cause  of  his  race.  In  support  of  this  contention,  he 
cited  with  approval  a  decision  of  the  Supreme  Court 
of  North  Carolina,  in  which  it  was  held  that  a  free 
negro  was  a  " citizen"  of  that  State.1 

The  majority  having  reached  the  conclusion  that 
the  Circuit  Court  was  without  jurisdiction,  it  was 
insisted  by  Judge  Curtis  that  the  case  should  be  re 
manded  to  that  Court,  with  directions  to  dismiss  the 
action.  This  course  would  have  disposed  of  the  case 
without  reference  to  other  questions  discussed  in  the 
argument.  The  Chief  Justice,  with  whom  Judge 
Wayne  and  Judge  Daniel  concurred,  was  of  the 
opinion  that,  because  of  the  language  of  the  statute 
defining  the  jurisdiction  of  the  Supreme  Court,  it 
was  its  duty,  notwithstanding  the  opinion  that  the 
Circuit  Court  had  no  jurisdiction,  to  proceed  to  de 
cide  the  questions  going  to  the  merits  of  the  case  as 
shown  by  the  facts  agreed  upon.  Judge  Curtis  dis 
cussed  this  question  of  practice  with  great  clearness 
and  sustained  his  view  with  abundant  authority.  It 
would  seem  that  the  weight  of  the  argument  upon 
this  question  was  with  the  dissenting  opinion. 

From  the  opinion  of  the  Chief  Justice,  that  the 
merits  of  the  case  were  before  the  Court  and  should 
be  decided,  the  question  arose  whether  the  removal 
i  State  vs.  Manuel,  20  N.C.  601. 


THE  SLAVERY  QUESTION  61 

of  Scott,  by  his  owner,  to  Fort  Snelling,  under  the 
circumstances  set  out  in  the  record,  worked  his 
emancipation,  and,  if  so,  whether  this  status  con 
tinued  after  his  return  to  Missouri,  where  slavery 
was  recognized  and  protected  by  law.  If  this  ques 
tion  were  decided  against  Scott,  the  case  would  have 
gone  off  upon  a  question  of  general  jurisprudence, 
not  involving  the  constitutional  power  of  Congress 
to  legislate  in  regard  to  slavery  in  the  Territories. 
The  Chief  Justice  takes  but  slight  notice  of  this 
question,  simply  referring  to  the  case  of  Strader  vs. 
Graham,1  as  decisive  of  the  contention,  but  Judge 
Campbell,  to  a  large  extent,  bases  his  concurring 
opinion  upon  it. 

After  a  concise  statement  of  the  facts,  he  says 
that  his  opinion  is  not  affected  by  the  plea  in  abate 
ment  and  that  he  will  not  discuss  the  question  it 
suggests.  This  is  entirely  logical  in  view  of  what  he 
proceeds  to  say.  If,  as  he  concludes,  Scott's  status  as 
a  slave  was  not  affected  by  his  removal  to  Illinois 
and  thereafter  to  Fort  Snelling,  the  Circuit  Court 
correctly  instructed  the  jury,  and  the  other  ques 
tions  were  immaterial.  He  says: 

"The  claim  of  the  plaintiff  to  freedom  depends 
upon  the  effect  to  be  given  to  his  absence  from  Mis 
souri  in  company  with  his  master  in  Illinois  and 
Minnesota,  and  this  effect  is  to  be  ascertained  by  a 
reference  to  the  laws  of  Missouri.  For  the  trespass 
was  committed  upon  one  claiming  to  be  a  freeman 
and  a  citizen  in  that  State,  and  who  had  been  living 
for  years  under  the  dominion  of  its  laws.  And  the 
1  10  Howard,  82. 


62        JOHN  ARCHIBALD  CAMPBELL 

rule  is  that  whatever  is  a  justification  where  the 
thing  is  done,  must  be  a  justification  in  the  forum 
where  the  case  is  tried. 

"The  Constitution  of  Missouri  recognizes  slavery 
as  a  legal  condition,  extends  guaranties  to  the  master 
of  slaves,  and  invites  immigrants  to  introduce  them 
as  property  by  a  promise  of  protection.  The  laws  of 
the  State  charge  the  master  with  the  custody  of  the 
slave  and  provide  for  the  maintenance  and  security 
of  that  relation.  .  .  .  The  inquiry  arises  whether  the 
manumission  of  the  slave  is  effected  by  his  removal, 
with  the  consent  of  the  master,  to  a  community 
where  the  law  of  slavery  does  not  exist,  in  a  case 
where  neither  the  master  nor  slave  discloses  a  pur 
pose  to  remain  permanently  and  when  both  parties 
have  continued  to  maintain  their  existing  relation. 
What  is  the  law  of  Missouri  in  such  cases?  Similar 
inquiries  have  arisen  in  a  great  number  of  suits,  and 
the  discussions  in  the  State  Courts  have  relieved  the 
question  of  much  of  its  difficulty." 

Following  an  exhaustive  discussion  and  the  cita 
tion  of  numerous  authorities,  English  and  Conti 
nental,  Judge  Campbell  thus  states  his  conclusion 
upon  this  branch  of  the  case:  "The  question  occurs 
as  to  the  judgment  to  be  given  in  this  case.  It  ap 
peared  upon  the  trial  that  the  plaintiff,  in  1834,  was 
in  a  state  of  slavery  in  Missouri,  and  he  had  been  in 
Missouri  for  near  fifteen  years  in  that  condition 
when  this  suit  was  brought.  Nor  does  it  appear  that 
he,  at  any  time,  possessed  another  state  or  condition 
de  facto.  His  claim  to  freedom  depends  upon  his 
temporary  elocation  from  the  domicile  of  his  origin, 


THE  SLAVERY  QUESTION  63 

in  company  with  his  master,  to  communities  where 
the  law  of  slavery  did  not  prevail.  My  examination 
is  confined  to  the  case,  as  it  was  submitted,  upon  un- 
contested  evidence,  upon  appropriate  issues,  to  the 
jury,  and  upon  the  instructions  given  and  refused  by 
the  Court  upon  that  evidence." 

He  was  of  the  opinion  that,  upon  the  record,  it  was 
not  a  controversy  between  citizens  of  different 
States  and  that  plaintiff,  at  no  period  of  his  life 
which  was  submitted  to  the  Court,  has  had  capacity 
to  maintain  a  suit  in  the  Courts  of  the  United 
States.  Judge  Campbell  is  careful  to  say  that  he  con 
curs  with  the  argument  of  the  Chief  Justice  upon  the 
plea  in  abatement,  in  so  far  as  it  has  reference  to 
plaintiff  and  his  family,  in  any  of  the  conditions  or 
circumstances  of  their  lives  "as  presented  in  the  evi 
dence  ,"  thus  carefully  avoiding  the  academic  ques 
tion  whether,  if  a  freeman  of  African  descent,  Scott 
was  a  "citizen,"  that  question  not  being  before  the 
Court.  Some  of  the  language  used  by  Judge  Taney 
in  the  discussion  of  this  question  gave  rise  to  the 
harsh  and  unjust  construction  and  criticism  of  his 
opinion.  He  was  of  the  opinion  that  the  judgment 
should  be  affirmed,  or  that  it  should  be  reversed  and 
remanded,  that  the  suit  might  be  dismissed.  Judge 
Campbell,  in  this  aspect  of  the  case,  was  in  agree 
ment  with  Judge  Nelson,  who  wrote  a  strong  opin 
ion  upon  the  effect  of  the  removal  of  Scott,  upon  the 
agreed  facts,  to  Illinois  and  Minnesota,  citing  Lord 
StowelPs  opinion  in  In  re  Grace  and  Judge  Story's 
comments  upon  it,  in  his  letter  to  Lord  Stowell.1 

1  Story,  W.  W.:  Life  and  Letters  of  Joseph  Story,  i,  552. 


64        JOHN  ARCHIBALD  CAMPBELL 

Judge  Curtis  and  Judge  McLean  dissented  from 
this  view,  and  both  filed  strongly  reasoned  opinions 
to  sustain  their  contention.  Up  to  this  point  it 
would  seem  that,  without  regard  to  differing  opin 
ions  respecting  the  conclusions  reached  by  the  Jus 
tices,  there  is  no  just  ground  for  criticizing  the  course 
pursued.  There  is  very  strong  ground  for  the  conten 
tion  that  if  a  majority  of  the  Court  reached  the  con 
clusion  that,  without  regard  to  Scott's  status,  as  a 
slave  or  freeman,  he  was  not  a  "citizen,"  the  man 
date  should  have  gone  to  the  Circuit  Court  to  dis 
miss  the  action.  The  same  result  followed  the  con 
clusion  that,  upon  the  facts  agreed,  he  was  a  slave. 
It  is  said,  however,  that  Judge  Curtis  was  of  the 
opinion  that  the  Court  had  jurisdiction  because  he 
thought  that  Scott,  upon  the  agreed  facts,  was  en 
titled  to  his  freedom.  The  majority  of  the  Justices 
agreed  that  the  decision  should  be  confined  to  these 
questions.  Judge  Nelson  was  designated  to  write 
the  opinion. 

If  the  case  had  been  disposed  of  upon  Judge  Nel 
son's  opinion,  it  would  probably  have  attracted  but 
small  public  notice.  While  Judge  Curtis  dissented, 
passing  the  question  of  practice,  the  sole  question 
decided  would  have  been  that,  upon  the  facts 
agreed,  whatever  may  have  been  Scott's  status  if  he 
had  remained  at  Fort  Snelling,  in  Minnesota,  upon 
his  return  to  Missouri,  and  residence  there  with  his 
owner,  he  was  a  slave  at  the  time  the  alleged  assault 
was  committed.  Lawyers  would  have  honestly  dif 
fered  in  respect  to  the  correctness  of  this  conclusion, 
and  doubtless  those  who  held  views  and  whose  feel- 


THE  SLAVERY  QUESTION  65 

ings  were  hostile  to  the  institution,  and  who  wished 
to  see  it  placed  under  the  strictest  limitations,  would 
have  believed  the  decision  wrong. 

It  must  be  kept  in  mind,  for  the  purpose  of  under 
standing  the  course  pursued  in  regard  to  other  as 
pects  of  the  case  which  caused  the  intense  public  ex 
citement,  that,  while  the  controversy  was  a  real  one 
and  the  action  brought  in  good  faith,  the  parties 
were  by  no  means  the  only  ones  interested.  The 
course  which  the  slavery  agitation,  in  recent  years, 
had  taken  in  the  country,  the  legislation  of  Con 
gress  in  regard  to  the  status  of  slavery  and  the  rights 
of  owners  of  slaves  to  carry  them  into  the  territory 
lying  north  of  the  line  fixed  by  the  Act  of  1820, 
known  as  the  " Missouri  Compromise,"  and  other 
legislation,  had  become  the  subject  of  political  dis 
turbance  and  sectional  hostility.  The  debates  in  the 
United  States  Senate  during  the  sessions  of  1850- 
52,  upon  measures  affecting  this  controversy,  had 
enlisted  the  efforts  of  its  ablest  members.  Attempts 
at  compromise  had  failed.  The  rapid  growth  of  popu 
lation  in  the  Territories,  with  their  desire  to  be  ad 
mitted  as  States,  intensified  the  controversy.  The 
power  of  Congress  to  prohibit  slavery  in  the  Terri 
tories  was  denied  by  the  owners  and  advocates  of 
the  system  and  strongly  sustained  by  those  who  saw 
in  the  admission  of  free  States  the  ultimate  destruc 
tion  of  the  institution.  The  political  campaign  of 
1856,  resulting  in  the  election  of  Mr.  Buchanan,  had 
been  largely  contested  on  this  and  other  phases  of 
the  slavery  question. 

It  was  manifest  that  the  country  was  being  car- 


66        JOHN  ARCHIBALD  CAMPBELL 

ried  by  the  agitation  into  dangerous  currents  and 
many  conservative  men  thought  that  a  decision  of 
the  Supreme  Court,  settling  the  question  whether 
the  congressional  legislation  excluding  slavery  from 
the  northern  portion  of  the  Territories  was  valid, 
would  be  accepted  as  final.  It  was,  under  these 
conditions,  an  understanding  of  which  is  necessary, 
that  the  Dred  Scott  case  found  its  way  into  the 
Court  in  1854.  Some  of  the  counsel  received  no 
compensation  for  their  services  in  arguing  the  case. 
All  of  them  were  of  the  highest  professional  posi 
tion.1 

While  there  was  controversy  respecting  the  man 
ner  in  which  the  Court  was  brought  to  the  conclu 
sion  that  a  discussion  and  decision  of  the  constitu 
tional  questions  argued  by  counsel  should  be  made, 
it  is  sufficient  to  say  that,  upon  the  suggestion  of 
Judge  Wayne,  the  Chief  Justice  wrote  the  opinion  as 
filed.  Mr.  George  Ticknor  Curtis  gives  an  interest 
ing  account  of  the  manner  in  which  the  course  which 
the  Court  pursued  was  brought  about.2  Upon  the 
publication  of  this  work  Judge  Campbell  wrote  Mr. 
Curtis  giving  his  recollection  of  the  occurrence 
which,  in  some  material  respects,  differed  from 
Mr.  Curtis's.  Judge  Campbell  also  gave  his  under 
standing  of  the  matter  in  a  letter  published  in  the 

1  Tyler:  Memoir  of  Roger  Brooke   Taney,  387;    Curtis,    G.  T.: 
Memorial  Addresses  —  Justice  Campbell,  delivered  at  a  meeting  of 
the  Bar  of  the  Supreme  Court  of  the  United  States,  April  6,  1889, 
and  published  in  a  pamphlet,  25.  For  an  interesting  view  of  the  case 
see  "The  Dred  Scott  Decision,"  by  E.  S.  Corwin,  American  Historical 
Review  (1911-12),  52;  Howe,  D.  W.:  Political  History  of  Secession 
to  the  Beginning  of  the  American  Civil  War,  chap.  XV. 

2  A  Memoir  of  Benjamin  R.  Curtis,  n,  206. 


THE  SLAVERY  QUESTION  67 

" Memoir"  of  Chief  Justice  Taney,  which  was  ap 
proved  by  Judge  Nelson.1 

It  is  not  necessary,  in  any  phase  of  the  case  in 
which  Judge  Campbell  was  concerned,  to  do  more 
than  refer  to  these  sources  of  information.  Whatever 
difference  of  understanding  may  have  existed  be 
tween  those  who  were  present  and  participated  in 
the  transaction,  Mr.  Curtis  makes  it  clear  that  those 
with  whom  he  was  associated  attributed  no  im 
proper  purpose  to  Judge  Wayne.  He  says  that  he 
made  the  suggestion,  which  was  adopted,  "with  the 
best  intentions,  with  entirely  patriotic  motives;  and 
believing  thoroughly  that  such  was  the  law  on  this 
constitutional  question,  he  regarded  it  as  eminently 
expedient  that  it  should  be  so  determined  by  the 
Court."  2 

It  was  conceded  by  all  concerned  that  the  consti 
tutional  question  was  fully  and  ably  argued.  Judge 
Campbell,  in  the  letter  to  Mr.  Curtis,  says:  "Judge 
Wayne  stated  that  the  case  had  been  twice  argued 
with  thoroughness;  that  public  expectation  had 
been  awakened  and  a  decision  of  the  important 
question  looked  for;  that  the  Court  would  be  con 
demned  as  failing  in  a  performance  of  its  duty,  and 
that  his  own  opinion  was  decided  that  the  Chief 
Justice  should  prepare  the  opinion  of  the  Court  and 
discuss  all  of  the  questions  in  the  cause.  There  was 
no  debate  about  this.  It  seemed  to  be  acquiesced  in, 
though  some  did  not  approve  it."  He  further  says: 

1  Tyler:   Memoir   of  Roger  Brooke   Taney,    382-85;    20  Wall. 
"Memoranda." 

2  A  Memoir  of  Benjamin  R.  Curtis,  n,  234. 


68        JOHN  ARCHIBALD  CAMPBELL 

"Each  Judge  was  left  free  to  express  his  own  posi 
tion  and  each  one  did  define  his  position.  There  is  an 
anomaly  in  the  manner  of  the  discussion  in  respect 
to  the  plea  in  abatement  that  has  produced  confu 
sion  and  much  misunderstanding.  This  was  the  dis 
cussion  of  the  merits  of  the  plea  in  abatement  by 
some  of  the  Justices." 

That  Judge  Wayne  and  the  other  Justices  who 
concurred  with  him  were  wrong  in  thinking  that  a 
decision  of  the  constitutional  question  would  be  ac 
cepted  by  the  losing  side  as  final,  and  quiet  agitation 
of  the  question  of  slavery  in  the  Territories,  was 
quickly  demonstrated,  and  is  not,  in  the  light  of 
what  occurred,  open  to  debate.  Whether,  if  the  de 
cision  had  sustained  the  contention  of  those  who 
maintained  that  the  legislation  was  a  valid  exercise 
of  congressional  power,  the  expectation  would  have 
been  realized,  must  remain  an  unanswered  question. 

In  respect  to  the  manner  in  which  the  Chief  Jus 
tice  and  Justice  Curtis  maintained  their  respective 
views,  we  have  the  opinion  of  one  of  the  counsel  who 
took  part  in  the  argument,  uttered  after  both  these 
great  Judges  had  passed  away  and  the  occasion  of 
the  litigation  had  ceased  to  have  other  than  an  his 
torical  interest.  Mr.  Reverdy  Johnson,  speaking  at 
the  meeting  of  the  Bar  in  memory  of  Judge  Curtis, 
lately  deceased,  said:  "Able  as  was  the  opinion  of 
the  majority  of  the  Court  delivered  by  Chief  Justice 
Taney,  it  was  admitted  at  the  time,  I  believe,  by 
most  of  the  profession,  that  the  dissenting  opinion 
of  Judge  Curtis  was  equally  powerful.  Lawyers  may 
differ,  as  they  have  differed,  as  to  which  of  these  two 


THE  SLAVERY  QUESTION  69 

eminent  men  was  right,  but  they  will  all  concede 
that  the  views  of  each  were  maintained  with  extra 
ordinary  ability,  while  those  who  knew  them  both 
will  never  differ  as  to  the  sincerity  of  their  respective 
convictions." 

Judge  Campbell,  presiding  over  the  memorial 
meeting,  said:  "In  respect  to  the  merits  of  the  re 
spective  opinions,  I  have  no  design  to  say  a  word. 
They  are  marked  with  great  ability  and  are  an  honor 
to  the  Court  which  was  able  to  produce  them.  They 
will  be  considered  hereafter  as  a  link  in  the  chain  of 
historical  events  and  justice  will  be  done  to  all  par 
ties  connected  with  them.  I  am  not  aware  that  there 
was  any  hostility  or  unkindness  felt  or  expressed  to 
Judge  Curtis  by  those  who  did  not  concur  with  him. 
I  can  speak  positively  as  to  some  and  shall  speak  as 
to  myself,  our  relations  remained  undisturbed  by 
tune,  distance,  and  the  corroding  effects  of  sectional 
strife  and  civil  war  until  the  hour  of  his  lamented 
death."  * 

Of  this  both  these  great  Judges  left  unmistakable 
testimony.  At  the  time  of  Chief  Justice  Taney's 
death  (1864),  Judge  Curtis,  seconding  the  resolu 
tions  adopted  by  the  Bar  of  the  First  Circuit,  meet 
ing  at  Boston,  referred  to  "his  eminent  abilities,  pro 
found  learning,  incorruptible  integrity,  and  signal 
private  virtues,"  and  to  the  "great  qualities  of  mind 
and  character"  exhibited  in  his  "long  and  illustri 
ous  judicial  career." 2  The  value  of  this  testimonial 
is  to  be  estimated  in  view  of  the  statement  of  his 

1  20  Wall.  "Memoranda." 

J  Curtis,  G.  T.:  A  Memoir  qf  Benjamin  R.  Curtis,  u,  336. 


70        JOHN  ARCHIBALD  CAMPBELL 

biographer  that  "  Judge  Curtis  never  spoke  of  any 
man,  living  or  dead,  otherwise  than  he  felt."  1 

Following  an  able  and  interesting  review  of  the 
Dred  Scott  case,  Professor  William  E.  Mikell  con 
cludes:  "As  a  technical  question  of  practice,  the 
writer  is  of  the  opinion  that  Taney  and  his  three  as 
sociates  erred  in  thinking  the  merits  of  the  case  be 
fore  them,  after  deciding  that  the  Circuit  Court  had 
no  jurisdiction,  just  as  he  thinks  Justice  McLean,  of 
the  minority,  was  wrong  in  holding  that  the  plea  to 
the  jurisdiction  was  not  before  the  Court,  but  only 
the  merits;  but  that  the  question  was  not  then  a  set 
tled  one  is  apparent  from  a  perusal  of  the  opinions 
in  this  case  and  the  authorities  cited  therein."  2 

The  last  word  spoken  by  any  of  the  participants 
in  this  famous  case  was  by  Mr.  George  Ticknor  Cur 
tis,  at  the  meeting  of  the  Bar  of  the  Supreme  Court 
upon  the  death  of  Judge  Campbell,  when,  referring 
to  the  fact  that  he  was  the  only  survivor  of  those 
who  took  part  in  the  argument  and  decision  of  the 
case,  he  said:  "I  know,  perhaps,  more  of  the  internal 
history  of  that  case  than  any  other  person  who  is 
now  living.  ...  It  is  due  to  the  Southern  Judges  who 
sat  in  that  memorable  case  to  speak  of  their  posi 
tions  and  the  doctrines  which  they  maintained." 
Referring  to  the  claim  made  by  the  advocates  of 
slavery,  he  said:  "It  was  a  plausible  claim.  It 
seemed  to  be  founded  in  an  equality  of  right  as  be 
tween  the  different  sections  of  the  Union  regarded 
as  slaveholding  and  non-slaveholding  States.  It  is 

1  Curtis,  G.  T. :  A  Memoir  of  Benjamin  R.  Curtis,  I,  231. 

2  Great  American  Lawyers,  iv,  170. 


THE  SLAVERY  QUESTION  71 

not  surprising,  therefore,  it  never  has  been  to  me, 
that  Judges  of  Southern  birth  and  training,  accus 
tomed  to  this  form  of  property  which  lay  at  the 
basis  of  social  life  in  those  States,  should  have  over 
looked  those  considerations  that  rendered  the  claim 
untenable  under  the  Constitution.  Certainly  they 
were  bound  to  follow  their  convictions,  and,  it  seems 
to  me,  that  no  impartial  person  can  now  examine 
their  opinions,  as  pronounced  from  the  Bench,  with 
out  seeing  that  they  expressed  convictions  honestly 
and  sincerely  held,  but  it  was  supposed  by  those 
learned  and  upright  men  that,  when  the  Supreme 
Court  should  have  affirmed  the  constitutional  doc 
trine,  which  they  believed  to  be  the  true  one,  all  fur 
ther  agitation  and  controversy  would  be  ended.  This 
was  a  great  mistake  and  miscalculation  as  the  sequel 
proved.77  l 

Judge  Campbell,  when  appointed  to  the  Bench, 
emancipated  his  household  slaves.  He  owned  no 
others.  While  living  in  Washington  he  employed  as 
his  servants  free  colored  persons.  In  compliance 
with  the  Alabama  law  he  became  guardian  for  his 
manumitted  slaves  and  so  continued  during  and  af 
ter  the  Civil  War.  Judge  Taney  manumitted  his 
slaves  many  years  before  his  appointment  as  Chief 
Justice,  supporting  the  older  ones  until  they  died.2 

Whether  the  construction  placed  upon  the  consti- 

1  Memorial   Addresses  —  Justice   Campbell,  26;    Tyler:   Memoir 
of  Roger  Brooke  Taney,  373;  Van  Santvoord:  Chief  Justices,  610; 
Potter,  Clarkson   N.:  "Roger  B.  Taney,"  Report,  Am.  Bar  Asso. 
(1881),  195;  Christian,  George  L.:  "Chief  Justice  Taney,"  Report, 
Virginia  State  Bar  Asso.  (1911),  180. 

2  Delaplaine,  Edward  S.:  Maryland  Historical  Magazine  (June, 
1918),  131. 


72        JOHN  ARCHIBALD  CAMPBELL 

tutional  provision,  giving  to  Congress  the  power  "to 
make  all  needful  rules  and  regulations  respecting 
the  territory  belonging  to  the  United  States/'  was 
correct,  either  in  respect  to  slavery  historically  or 
upon  other  canons  of  construction,  has  long  ceased  to 
have  other  than  historical  interest. 

The  Dred  Scott  case  does  not  stand  alone  in  our 
judicial  history  as  an  illustration  of  diversity  of 
opinion  among  the  members  of  the  Court  and  of  un 
certainty  in  respect  to  the  questions  decided.  In 
Downes  vs.  Bid  well,1  which  is  illustrative  of  this 
fact,  the  several  Justices  found  as  much  difficulty  in 
coming  to  an  agreement  respecting  the  relation  of 
territory  acquired  by  cession,  or  purchase,  to  the 
United  States,  and  the  extent  to  which  the  Consti 
tution  limited  and  controlled  congressional  power. 
The  reporter  encountered  the  same  difficulty  in 
formulating  the  "head  notes"  as  in  the  Dred  Scott 
case,  saying:  "There  is  no  opinion  in  which  a  major 
ity  of  the  Court  concurred."  He  adopts  the  same 
course  in  "making  head  notes  of  each  of  the  concur 
ring  opinions." 

As  a  protest  against  the  decision  in  the  Dred 
Scott  case,  the  Supreme  Court  of  Wisconsin  ren 
dered  a  decision  which  nullified  the  Fugitive  Slave 
Law  and  denied  the  power  of  the  Supreme  Court 
of  the  United  States  to  review  the  decision.  The 
course  pursued  by  the  State  Court  raised  an  issue, 
the  far-reaching  effect  of  which  exceeded  the  con 
troversy  regarding  the  legal  status  of  slavery  or  the 
validity  of  the  Fugitive  Slave  Law. 
i  182  U.S.  244-391. 


THE  SLAVERY  QUESTION  73 

The  record  discloses  the  character  of  the  contro 
versy  and  the  facts  upon  which  it  was  based.  Sher 
man  Booth  was  arrested  and  brought  before  a 
United  States  Commissioner  upon  a  warrant  charg 
ing  him  with  aiding  and  abetting  the  escape  of  a 
fugitive  slave  from  the  marshal  in  violation  of  the 
Act  of  Congress  of  September,  1850.  Upon  the  hear 
ing  the  Commissioner  held  Booth  to  bail,  which  was 
given.  His  bail  surrendered  him  and  he  was  com 
mitted  to  the  custody  of  the  marshal,  whereupon  he 
sued  out  a  writ  of  habeas  corpus  before  one  of  the 
Justices  of  the  Supreme  Court  of  the  State.  Upon 
the  return  to  the  writ,  the  marshal  setting  forth  the 
cause  of  his  detention,  the  Justice  discharged  Booth, 
and  upon  the  return  to  a  writ  of  certiorari  issued  by 
the  Supreme  Court  of  the  State,  the  order  of  dis 
charge  was  affirmed.  The  judgment  was  brought  to 
the  Supreme  Court  of  the  United  States  upon  a 
writ  of  error.  The  record  disclosed  that  in  the  State 
Court  the  validity  of  the  Act  of  Congress  was 
brought  into  question  and  the  judgment  of  that 
Court  was  against  its  validity.  Other  questions  were 
also  presented  and  decided. 

Thereafter  Booth  was  indicted  by  the  Grand  Jury 
of  the  District  Court  for  the  same  offense  for  which 
he  was  held  to  bail,  and  upon  trial  before  a  petit 
jury  he  was  convicted,  and  sentenced  to  imprison 
ment  one  month  and  to  pay  a  fine  of  one  thousand 
dollars.  He  filed  a  petition  in  the  State  Supreme 
Court  for  a  writ  of  habeas  corpus,  setting  forth  the 
proceedings  in  the  District  Court  and  alleging  that 
the  Act  of  Congress  was  unconstitutional.  Other 


74        JOHN  ARCHIBALD  CAMPBELL 

objections  to  the  proceedings  in  the  District  Court 
were  presented.  The  State  Supreme  Court  issued 
two  writs  of  habeas  corpus  for  Booth,  then  in  the 
custody  of  the  sheriff,  to  whose  actual  keeping  he 
had  been  committed  by  the  marshal,  directing  both 
officers  to  produce  him  before  the  Court,  with  the 
cause  of  his  imprisonment.  Upon  the  return  to  the 
writ,  with  a  transcript  of  the  proceedings  of  the  Dis 
trict  Court,  the  State  Court  adjudged  that  the  im 
prisonment  was  illegal  and  directed  his  discharge. 
The  Attorney-General  of  the  United  States  pre 
sented  to  the  Chief  Justice  a  petition  for  a  writ  of 
error,  which  was  allowed,  and  citation  issued  and 
served  on  the  Clerk  of  the  Supreme  Court  of  the 
State.  No  return  being  made  to  the  writ,  upon  the 
affidavit  of  the  Attorney-General  stating  that  he 
was  informed  that  the  Court  had  directed  the  Clerk 
to  make  no  return  to  the  writ  of  error  and  no  order 
upon  the  journals  or  records  of  the  Court  concern 
ing  the  same,  an  order  was  made  directing  the  Clerk 
to  make  return  to  the  writ.  This  order  was  disre 
garded,  whereupon  the  Court  permitted  the  At 
torney-General  to  file  a  transcript  of  the  record  and 
docket  the  case,  and  directed  that  it  stand  for  argu 
ment  at  the  next  term  without  further  notice  to 
either  party.  Both  cases  were  argued  at  the  Decem 
ber  Term,  1858,  by  Jeremiah  S.  Black,  Attorney- 
General,  for  the  marshal.  No  counsel  appeared  for 
Booth  or  the  State. 

The  Chief  Justice,  writing  for  the  Court,  which 
was  unanimous,  said  that  the  propositions  main 
tained  by  the  State  Court  were  new  in  the  juris- 


THE  SLAVERY  QUESTION  75 

prudence  of  the  United  States,  and  their  supremacy 
over  the  Courts  of  the  United  States,  in  cases  aris 
ing  under  the  Constitution  and  laws  of  the  United 
States,  asserted  for  the  first  time.  After  pointing  out 
clearly  the  fallacy  of  the  argument  and  the  inevita 
ble  results  of  the  attitude  assumed  by  the  State 
Court,  he  said  that  he  had  extended  the  examination 
of  the  decisions  beyond  the  limits  required  by  any 
difficulty  in  the  questions;  that  the  decisions  having 
been  made  by  the  Supreme  Judicial  tribunals  of  the 
State,  a  Court  so  elevated  in  its  position,  which  if  it 
could  be  maintained  would  subvert  the  very  founda 
tions  of  the  Government,  it  seemed  to  be  the  duty  of 
the  Court,  when  exercising  its  appellate  powers,  to 
show  plainly  the  grave  errors  into  which  the  State 
Court  had  fallen  and  the  consequences  to  which 
they  would  inevitably  lead. 

The  State  Court  asserted  and  exercised  the  power 
to  nullify  the  judgment  of  the  District  Court,  and 
also  declared  its  opinion  that  the  Federal  statute 
was  unconstitutional.  This,  in  the  opinion  of  the 
Supreme  Court  of  the  United  States,  rendered  it 
proper  to  declare  that,  in  its  judgment,  the  statute, 
commonly  called  the  Fugitive  Slave  Law,  was  in  all 
its  provisions  fully  authorized  by  the  Constitution 
of  the  United  States;  that  the  Commissioner  had 
lawful  authority  to  issue  the  warrant  and  commit 
the  defendant,  and  that  his  proceedings  were  regu 
lar  and  conformable  to  law;  and  that  the  jurisdiction 
to  try  and  render  judgment  in  the  case  was  within 
the  exclusive  jurisdiction  of  the  District  Court.1 
1  Ableman  vs.  Booth,  21  Howard,  506. 


76        JOHN  ARCHIBALD  CAMPBELL 

While  it  was  held,  and  in  the  United  States  Senate 
declared  by  Senator  Siimner  and  others,  that  cer 
tain  provisions  of  the  Fugitive  Slave  Law  of  1850 
were  unconstitutional,  there  could  be  no  doubt  that 
the  question  of  its  validity  was  for  the  decision  of 
the  Supreme  Court,  but,  as  said  by  Mr.  George  W. 
Biddle,  "The  voice  of  the  law  was  no  longer  heard 
when  the  fires  of  war  already  appeared  on  the  hori 
zon.7'  * 

Twelve  days  after  this  decision  was  rendered,  the 
Legislature  of  Wisconsin  adopted  a  set  of  resolutions 
reciting  the  action  of  the  Court  and  declaring  that, 
in  assuming  jurisdiction  of  the  case,  the  Supreme 
Court  of  the  United  States  was  guilty  of  an  act  of 
arbitrary  power,  unauthorized  by  the  Constitution 
and  virtually  suspending  the  benefit  of  the  writ  of 
habeas  corpus.  "That  the  decision  was  an  act  of  un- 
delegated  power,  and  therefore  without  authority, 
void,  and  of  no  force.  It  was  further  resolved  that 
the  Government  formed  by  the  Constitution  of  the 
United  States  was  not  made  the  exclusive  or  final 
judge  of  the  extent  of  the  powers  delegated  to  it;  but 
that,  as  in  all  other  cases  of  compact  among  parties 
having  no  common  judge,  each  has  an  equal  right  to 
judge  for  itself  as  well  of  infractions  as  the  mode 
and  measure  of  redress.  That  the  principle  con 
tended  for  by  the  party  which  now  ruled  in  the  coun 
cils  of  the  Nation,  that  the  general  Government  is 
the  exclusive  judge  of  the  powers  delegated  to  it, 
stopped  nothing  short  of  despotism.  .  .  .  That  the 

1  History  of  the  Development  of  American  Constitutional  Law,  187; 
Essays  and  Speeches  of  J.  S.  Black,  417. 


THE  SLAVERY  QUESTION  77 

several  States  which  formed  that  instrument,  being 
sovereign  and  independent,  have  the  unquestionable 
right  to  judge  of  its  infractions,  and  that  positive  de 
fiance  by  these  sovereignties  of  all  unauthorized  acts 
done  under  color  of  that  instrument  is  the  rightful 
remedy."  l 

Another  illustration  of  the  intensity  of  the  opposi 
tion  in  the  Northern  States  to  the  Fugitive  Slave 
Law,  and  of  the  determination  to  prevent  its  en 
forcement,  is  seen  in  the  case  of  Kentucky  vs.  Deni- 
son,  Governor  of  Ohio.2  One  Largo  was  indicted  in 
the  State  Court  of  Kentucky  for  enticing  a  slave  to 
leave  her  owner  in  violation  of  the  statute  of  that 
State,  and  fled  to  Ohio.  The  Governor  of  Kentucky 
issued  a  requisition  upon  the  Governor  of  Ohio,  who, 
upon  the  advice  of  the  Attorney-General  of  Ohio, 
that  the  charge  against  Largo  did  not  constitute 
"crime"  within  the  meaning  of  the  provision  of  the 
Federal  Constitution,  refused  to  recognize  the  req 
uisition  or  to  deliver  Largo  to  be  removed  to  the 
State  of  Kentucky.  The  question,  as  stated  by  the 
Attorney-General  of  Ohio,  was,  "whether,  under 
the  Federal  Constitution,  the  State  is  under  an  obli 
gation  to  surrender  its  citizens  or  residents  to  any 
other  State,  on  the  charge  that  they  have  com 
mitted  an  offense  not  known  to  the  laws  of  the 
former,  nor  affecting  the  public  safety,  nor  regarded 

1  Tyler:  Memoir  of  Roger  Brooke  Taney,  397.  An  interesting  his 
tory  of  this  case,  with  the  course  pursued  by  the  Supreme  Court 
and  Legislature  of  Wisconsin  is  given  in  Political  History  of  Seces 
sion,  to  the  Beginning  of  the  American  Civil  War,  by  Daniel  Wait 
Howe,  chap.  xi. 

2  24  Howard,  66. 


78        JOHN  ARCHIBALD  CAMPBELL 

as  malum  in  se  by  the  general  judgment  of  civilized 
nations." 

The  State  of  Kentucky,  through  its  Attorney- 
General,  applied  to  the  Supreme  Court,  in  the  exer 
cise  of  its  original  jurisdiction,  to  issue  a  writ  of  man- 
damns,  commanding  the  Governor  of  Ohio  to  obey 
the  requisition.  The  motion  was  argued  by  Steven 
son,  Cooper,  and  Marshall,  for  Kentucky,  and  by 
Wolcott,  Attorney-General  of  Ohio,  for  the  Gover 
nor  of  that  State.  The  reporter  has  set  out  very 
fully  the  arguments  of  counsel,  and  the  authorities 
upon  which  they  relied.  It  was  conceded  that  the 
proceeding  was  without  precedent.  While  the  char 
acter  of  the  writ  of  mandamus,  in  English  and 
American  jurisprudence,  was  discussed  at  length, 
the  interest  in  the  argument  centers  upon  the  con 
troversy  in  regard  to  the  construction  of  the  word 
"crime,"  as  used  in  the  Constitution,1  and  the  valid 
ity  of  the  Act  of  1793  regulating  the  procedure  for 
enforcing  the  constitutional  provision  and  imposing 
the  duty  upon  the  State  to  return  fugitives  from 
justice. 

Attorney-General  Wolcott  insisted  that  the  Act 
of  1793  was  unconstitutional.  He  concludes  his 
argument  by  serving  notice  that  those  whose  views 
he  represented  did  not  propose  to  submit  questions 
growing  out  of  the  action  of  the  free  States  regard 
ing  slavery  to  the  decision  of  the  Federal  Courts, 
saying:  "The  power  to  compose  this  national  and 
political  strife  does  not  reside  in  this  tribunal;  the 
pursuing  party  cannot  cross  its  threshold;  the  party 

1  Art.  iv,  Section  2. 


THE  SLAVERY  QUESTION  79 

pursued  is  beyond  the  reach  of  its  arm;  the  subject 
of  the  difference  has  been  excluded  from  its  action; 
and  the  writ  which  it  is  solicited  to  grant  has  been 
denied  to  it  for  the  exercise  of  its  original  jurisdic 
tion/' 

The  Court  unanimously  held  that  the  position 
taken  by  the  Governor  of  Ohio  was  without  consti 
tutional  or  statutory  support,  and  that  it  was  his 
duty  to  obey  the  requisition.  The  Chief  Justice  said: 
"But  looking  to  the  subject-matter  of  this  law,  and 
the  relations  which  the  United  States,  and  the  sev 
eral  States,  bear  to  each  other,  the  Court  is  of  opin 
ion,  the  words,  'it  shall  be  the  duty/  were  not  used 
as  mandatory  and  compulsory,  but  as  declaratory  of 
the  moral  duty  which  this  compact  created  when 
Congress  had  provided  the  mode  of  carrying  it  into 
effect.  ...  It  would  seem  that  when  the  Constitu 
tion  was  formed  and  when  this  law  was  passed,  it 
was  confidently  believed  that  a  sense  of  justice  and 
of  mutual  interest  would  insure  a  faithful  execution 
of  this  constitutional  provision,  by  the  Executive  of 
every  State,  for  every  State  had  an  equal  interest  in 
the  execution  of  a  compact  absolutely  essential  to 
their  peace  and  well-being  in  their  internal  concerns, 
as  well  as  members  of  the  Union.  Hence,  the  use  of 
the  words  ordinarily  employed,  when  an  undoubted 
obligation  is  required  to  be  performed,  'it  shall  be 
his  duty/  But  if  the  Governor  of  Ohio  refuses  to  dis 
charge  this  duty,  there  is  no  power  delegated  to  the 
general  Government,  either  through  the  Judicial 
Department,  or  any  other  Department,  to  use  any 
coercive  means  to  compel  him." 


80        JOHN  ARCHIBALD  CAMPBELL 

The  decision  was  clearly  right,  but,  as  said  by  Mr. 
George  W.  Biddle,  "  There  is  a  tone  of  almost  pa 
thetic  dignity  in  the  portion  of  the  opinion  in  which 
it  is  asserted  that  the  performance  of  the  duty  in 
question  was  left  to  depend  upon  the  fidelity  of  the 
State  Executive  to  the  compact  entered  into  by  the 
other  States."  1 

This  was  the  last  of  the  cases  which  came  before 
the  Court,  prior  to  the  Civil  War,  in  which  questions 
in  regard  to  slavery  were  involved.  The  controversy 
had  passed  beyond  the  sphere  of  forensic  debate  and 
judicial  decision. 

Before  closing  this  chapter  of  Judge  Campbell's 
life,  it  will  be  of  interest  to  note  some  incidents  of  a 
personal  character  relating  to  the  Court  and  the  at 
torneys  practicing  before  it.  But  one  change  in  the 
personnel  came  by  resignation.  Among  the  regret 
table  results  following  the  decision  of  the  ill-fated 
Dred  Scott  case  was  the  resignation  of  Judge  Ben 
jamin  R.  Curtis.  He  assigned,  as  his  reason  for  re 
signing,  the  meager  salary  which  he  received  and  the 
duty  which  he  owed  to  his  family;  of  course  this  was 
a  sufficient  reason.  George  Ticknor  Curtis,  however, 
says:  "The  pecuniary  reason  for  resigning  was  the 
leading  and  decisive  one  .  .  .  the  other  .  .  .  although 
secondary  and  subordinate,  had  a  material  influ 
ence." 

The  correspondence  between  Judge  Curtis  and 
his  brother,  together  with  the  discussion  of  the 
causes  and  incidents  attending  the  resignation,  is 
both  interesting  and  illustrative  of  the  high  moral 

1  History  of  the  Development  of  American  Constitutional  Law,  187. 


THE  SLAVERY  QUESTION  81 

qualities  and  elevated  tone  of  mind  and  purity  of 
heart  of  this  learned,  distinguished,  and,  in  all  re 
spects,  admirable  judge  and  man.1 

Upon  learning  of  his  resignation,  Judge  Campbell 
sent  to  Judge  Curtis  the  following  letter: 

WASHINGTON  CITY 

September  3,  1857 
DEAR  Sm: 

Your  letter  of  the  1st  inst.  was  received  this 
morning.  I  deeply  regret  the  decision  you  have  made 
to  resign  your  place  on  the  bench  of  the  Supreme 
Court.  Had  I  been  aware  that  such  a  measure  was  in 
contemplation,  I  should  have  placed  before  you  an 
earnest  remonstrance  on  the  subject.  There  are  pub 
lic  considerations  which,  in  my  judgment,  render 
your  resignation  a  misfortune  to  the  country.  I  hope 
you  will  not  consider  it  obtrusive  or  unbecoming  in 
me  to  express  to  you  my  high  appreciation  of  the 
very  great  abilities  you  brought  to  the  performance 
of  your  duties,  and  my  respect  and  veneration  for 
the  integrity  with  which  those  duties  were  habitu 
ally  and  consistently  discharged  on  your  part.  It  is  a 
great  satisfaction  to  me  that  our  relations  on  the 
bench  have  uniformly  been  those  of  courtesy  and 
kindness,  and  I  trust  that  they  may,  from  time  to 
time,  be  renewed,  notwithstanding  this  official  sep 
aration.  Mrs.  Campbell  joins  me  in  sincere  regret  for 
the  decision  you  have  made,  and  in  the  expression  of 
esteem  and  respect  for  Mrs.  Curtis  and  yourself. 
Very  truly  yours 

J.  A.  CAMPBELL 

1  Curtis,  G.  T. :  A  Memoir  of  Benjamin  R.  Curtis,  i,  244. 


82        JOHN  ARCHIBALD  CAMPBELL 

Nathan  Clifford,  of  Maine,  was  appointed  to  fill 
the  vacancy  caused  by  Judge  Curtis's  resignation. 

Judge  Daniel  died  December  4,  1860,  and  at  the 
memorial  meeting  of  the  Supreme  Court  Bar,  Jeffer 
son  Davis,  then  Senator  from  Mississippi,  presided. 
Edwin  M.  Stanton  made  the  motion  for  the  appoint 
ment  of  the  Committee  on  Resolutions  which  were 
presented  to  the  Court  by  Attorney-General  Jere 
miah  S.  Black.  This  was  the  last  meeting  of  these 
eminent  men,  all  of  whom  were  members  of  the 
same  political  party.  Within  a  year  the  mutations  in 
politics  and  the  tragedy  of  war  rendered  any  per 
sonal,  professional,  or  social  intercourse  between 
them  impossible.1 

During  this  period  two  eminent  lawyers  filled 
the  office  of  Attorney-General,  Caleb  Gushing,  of 
Massachusetts,  and  Jeremiah  S.  Black,  of  Pennsyl 
vania.  Edwin  M.  Stanton  served  as  Attorney-Gen 
eral  during  the  last  three  months  of  Buchanan's  ad 
ministration.  Of  the  lawyers  who  were  admitted  to 
practice  in  the  Supreme  Court  during  Campbell's 
term,  Alonzo  Taft,  of  Ohio,  and  Augustus  H.  Gar 
land,  of  Arkansas,  filled  the  office  of  Attorney-Gen 
eral  subsequent  to  the  Civil  War;  Samuel  F.  Miller 
and  Horace  Gray  filled,  with  marked  distinction, 
the  position  of  Associate  Justices;  William  Pinkney 
Whyte,  Lyman  Trumbull,  Clement  C.  Clay,  John 
H.  Reagan,  Charles  Faulkner,  and  James  R.  Doo- 
little  served  terms  in  the  United  States  Senate; 
Charles  Andrews  became  Chief  Judge  of  the  Court 
of  Appeals  of  New  York. 

1  24  Howard,  vi. 


THE  SLAVERY  QUESTION  83 

Among  the  cases  which  brought  interesting  asso 
ciations  of  attorneys  into  the  Court  were  Corning 
vs.  Iron  and  Nail  Factory,1  in  which  Thaddeus  Stev 
ens  and  Reverdy  Johnson  appeared  together,  with 
Horatio  Seymour  and  William  H.  Seward  in  opposi 
tion;  Forsyth  vs.  Reynolds,2  in  which  Abraham  Lin 
coln  and  Salmon  P.  Chase  appeared  on  opposing 
sides,  Lincoln  winning  the  case.  Of  the  attorneys 
practicing  in  the  Court,  Reverdy  Johnson,  of  Mary 
land,  and  Judah  P.  Benjamin,  of  Louisiana,  had  the 
largest  number  of  appearances.  Badger,  of  North 
Carolina;  Carlisle,  Brent,  May,  and  Edwin  M.  Stan- 
ton,  of  Washington;  Janin,  of  Louisiana;  George 
Ticknor  Curtis,  of  Massachusetts;  William  H. 
Seward  and  William  M.  E warts,  of  New  York; 
Thomas  Ewing,  of  Ohio;  S.  Teackle  Wallis  and 
J.  Mason  Campbell,  of  Maryland;  J.  Louis  Pettigru, 
of  South  Carolina;  John  J.  Crittenden,  of  Ken 
tucky,  and  Judge  Benjamin  R.  Curtis  frequently 
appeared. 

William  H.  Seward  had  declared  that  the  conflict 
between  slavery  and  freedom  was  "  irrepressible " 
and  to  be  decided  by  an  appeal  to  the  " higher  law," 
and  Lincoln,  while  disclaiming  any  purpose  to  inter 
fere  with  slavery  as  it  existed  in  the  States,  an 
nounced  as  a  truth  which  could  lead  to  no  other 
result,  that  the  Union  could  not  exist  half  slave  and 
half  free.  Chase,  in  Ohio,  was  teaching  the  people 
that  "the  legislature  cannot  authorize  injustice  by 
law,  it  cannot  repeal  the  laws  of  nature,  cannot  cre 
ate  any  obligation  to  do  wrong";  and  that  "upon 

1  15  Howard,  451.  2  15  Howard,  561. 


84        JOHN  ARCHIBALD  CAMPBELL 

the  question  of  enforcement  of  the  Fugitive  Slave 
Law,  partaking  largely  of  a  moral  and  political  na 
ture,  the  judgment  of  the  Court  must  necessarily  be 
rejudged  at  the  tribunal  of  public  opinion,  the  opin 
ion,  not  of  the  American  people,  but  of  the  civilized 
world/'  l 

No  matter  how  clear  and  how  rigid  the  constitu 
tional  provisions  relied  upon  for  protection  of  slav 
ery  in  the  States,  or  the  right  to  carry  them  into 
Territories,  when  large  numbers  of  well-organized 
men  in  the  free  States  became  convinced  that  the 
institution  was  morally  wrong  and  violated  elemen 
tary  human  rights,  such  provisions  could  not  be 
enforced.  While  in  the  North  and  rapidly  growing 
West,  those  who  wished  to  see  slavery  limited  in  its 
extent,  and  ultimately  destroyed,  differed  in  their 
method  of  accomplishing  this  result,  they  were  in 
agreement  in  their  purpose,  and  equally  determined 
that  constitutional  provisions  should  not  be  so  con 
strued  as  to  permit  slavery  to  go  into  the  Territo 
ries,  or  the  Fugitive  Slave  Law  to  be  enforced  in  the 
free  States.  It  was,  therefore,  but  a  question  of  time 
when  judicial  decisions  and  the  process  of  courts 
would  be  disregarded  and,  if  necessary,  forcibly  re 
sisted.  Southern  men  knew  and  understood  this 
truth  full  well.  They  knew  equally  well  that,  unless 
the  slave-owner  was  permitted  to  carry  his  slaves 
into  the  Territories  and  receive  the  protection  of  the 
National  Government,  by  a  process  of  restriction 
and  strangulation  the  system  was  doomed  to  ex- 

1  Hart,  A.  B. :  Salmon  P.  Chase,  71,  "  Higher  Law  in  the  North  "; 
Howe:  Political  History  of  Secession,  217. 


THE  SLAVERY  QUESTION  85 

tinction,  and  that  the  Southern  States  would,  in  a 
few  years,  be  reduced  to  a  minority  in  the  Union  and 
without  power  to  protect  their  political  or  property 
rights.  Southern  statesmen  saw  this  clearly.  The 
record  of  their  struggle  to  maintain  what  they  con 
ceived  to  be  their  constitutional  rights  and  enforce 
its  recognition  constitutes  an  interesting  and,  in 
many  respects,  a  sad  story. 

It  is  clear  enough  now,  in  the  light  of  events,  that 
they  could  not  succeed.  Whether  by  further  compro 
mise  the  inevitable  fate  of  slavery  could  have  been 
postponed,  or  its  coming  rendered  less  disastrous  to 
the  welfare  of  the  then  generation,  is  of  no  more  than 
speculative  interest.  Whether  gradual  emancipa 
tion,  with  compensation,  would  not  have  brought, 
while  in  progress,  complications  and  disastrous  re 
sults  to  the  peace  and  happiness  of  both  races,  is  by 
no  means  clear.  It  was  inevitable  that,  in  the  at 
tempted  solution  of  a  problem  containing  so  many 
conflicting  factors  and  involving  so  many  and  such 
varied  motives,  mistakes  should  be  made.  Judge 
Campbell  was  alive  to  the  dangers,  and  sought  by 
all  means  in  his  power  to  divert  them  from  his  peo 
ple  and  the  country.  When  he  failed,  he  bore  his  part 
of  the  common  misfortunes  with  loyalty  to  his  State 
and  section,  and  this  is  the  standard  by  which  the 
conduct  of  all  men  under  such  conditions  must  be 
measured. 

While  quotations  have  been  made  with  some  fuL 
ness  from  several  of  Judge  Campbell's  dissenting 
opinions,  it  should  not  be  assumed  that  he  was, 
in  the  usual  acceptance  of  the  term,  a  "  dissenting 


86        JOHN  ARCHIBALD  CAMPBELL 

Judge."  A  study  of  our  judicial  history,  both  State 
and  Federal,  vindicates  not  only  the  propriety  of, 
but  the  valuable  service  frequently  rendered  by, 
well-considered,  strongly  reasoned  dissenting  opin 
ions.  Illustrations  of  this  truth  will  readily  occur  to 
the  mind  of  every  intelligent  lawyer.1 

Judge  Campbell  was  a  consistent  strict  construc- 
tionist  of  the  Federal  Constitution  and  sensitive  to 
infringement,  by  judicial  construction,  upon  the  re 
served  domain  of  State  legislation  and  the  judicial 
power  vested  in  the  State  Courts.  He  knew  full  well, 
from  the  study  of  the  history  of  nations  and  political 
institutions,  that  courts  are  among  the  most  effec 
tive  agencies  in  absorbing  and  centralizing  power  at 
the  expense  of  local  self-government  by  the  amplifi 
cation  and  enlargement  of  their  jurisdiction.  He 
knew  that  railroad  companies,  banks,  and  other 
corporations,  with  their  rapidly  increasing  expan 
sion  in  power  and  wealth,  would  seek  in  the  Federal 
Courts  a  shelter  from  State  control.  While  he  did 
not  claim  finality  in  his  opinions,  he  did  not  hesitate 
to  express  strongly  his  opposition  to  what  he  re 
garded  as  a  menace  to  the  reserved  power  of  the 
States  over  these  legal  entities  which  they  had 
"  called  into  existence."  While  his  views  have  not 
prevailed  against  what  was  probably  the  inevitable 
trend  of  thought,  his  opinions  are  of  interest  to  the 
student  of  our  judicial  history  as  illustrations  and 
expressions  of  the  opposing  schools  of  constitutional 
construction. 

1  Carson:  "  Great  Dissenting  Opinions,"  Report,  Am.  Bar  Asso. 
(1894),  273. 


THE  SLAVERY  QUESTION  87 

In  the  development  of  constitutional  law,  the  con 
servative,  steadying  influence  of  a  great  judge,  al 
though  not  always  in  agreement  with  his  associates, 
is  wholesome.  This  is  especially  true  in  our  system  of 
government,  with  its  checks  and  balances,  so  essen 
tial  to  the  preservation  of  the  powerful  yet  delicate 
political  and  judicial  mechanism. 

In  his  opinions  Judge  Campbell  discussed  and  ap 
plied  to  the  facts  general  principles,  sustained  by 
citations  from  decisions  of  the  Supreme  Court  and 
from  civilians  with  whose  writings  he  was  probably 
more  familiar  than  any  of  his  associates.  His  style 
was  clear  and  vigorous:  his  conclusions  were  stated 
concisely.  In  the  resolutions  adopted  by  the  mem 
bers  of  the  Bar  of  the  Supreme  Court,  upon  his 
death,  prepared  by  A.  H.  Garland,  former  Attorney- 
General,  it  was  said:  "He  was  a  jurist  of  extensive 
and  varied  learning  in  the  common  and  civil  law  as 
well,  and  accustomed  to  resort  to  the  great  sources 
of  jurisprudence  which  are  the  school  where  profi 
ciency  can  best  be  acquired  in  the  art  of  applying 
the  abstract  principles  of  the  law  to  actual  cases." 

Judge  Campbell  survived  all  of  his  associates  on 
the  Bench;  hence  we  have  no  expression  from  any  of 
them  of  their  estimate  of  his  services;  none  survived 
to  pay  tribute  to  him  as  he  did  to  Judge  Curtis  in 
words  of  generous  eulogy.  As  said  by  Governor 
Hoadly  of  Ohio:  "He  was  the  last  survivor  of  that 
company  of  giants  over  which  Roger  B.  Taney  pre 
sided.  .  .  .  How  well  he  performed  his  duties,  how 
fully  he  fulfilled  the  expectation  of  the  members  of 
the  Court  who  solicited  his  appointment,  I  need  not 


88        JOHN  ARCHIBALD  CAMPBELL 

say.  .  .  .  We  all  know  him  as  history  has  recorded 
him,  as  a  grave,  serious,  careful,  clear,  logical,  per 
suasive  expounder  of  the  law.  As  such  his  fame  will 
go  down  to  many  generations  yet  to  come."  l 

1  Memorial  Addresses — Justice  Campbell. 


CHAPTER  IV 

ON  THE  CIRCUIT  I  FILIBUSTERING  AND  THE 
SLAVE  TRADE 

JUDGE  CAMPBELL,  in  accordance  with  the  provisions 
of  the  Judiciary  Act  and  the  custom  then  prevailing, 
presided  over  the  Circuit  Courts  of  the  Southern 
Circuit.  A  distinguished  member  of  the  Bar  of  New 
Orleans  says  that  his  appearance  was  all  that  could 
be  desired  by  the  friends  of  order  and  government. 
"His  presence  attracted  the  attention  of  the  public 
and  his  way  of  controlling  and  dispatching  business 
justly  brought  him  the  reputation  of  being  a  great 
Judge. "  He  was  called  upon  to  hear  many  important 
cases,  involving,  among  others,  questions  arising 
out  of  the  peculiar  system  of  real  estate  law,  based 
upon  the  French  and  Spanish  Codes.  We  have  no 
other  record  of  his  decisions  and  opinions  than  is 
found  in  the  Supreme  Court  Reports  in  such  cases  as 
were  carried  to  that  Court  by  writs  of  error  or  ap 
peal.  His  judgments  in  such  cases  were  generally 
affirmed.  The  Bar  of  the  Southern  Circuit  has,  at  all 
periods  in  its  history,  included  lawyers  of  profound 
and  extensive  learning  and  marked  ability,  several 
of  national  repute.  During  the  ten  years  immedi 
ately  preceding  the  Civil  War,  among  the  most 
prominent  were  Alexander  J.  Porter,  Edward  Doug 
lass  White,  George  Eustis,  Pierre  Soule,  Charles  M. 
Conrad,  Louis  Janin,  Judah  P.  Benjamin,  William 
H.  Hunt,  Leroy  P.  Walker,  and  Andrew  White.1 
1  Warren,  Charles:  A  History  of  the  American  Bar,  412. 


90        JOHN  ARCHIBALD  CAMPBELL 

Among  the  cases  of  more  than  usual  interest 
which  came  before  the  Court  was  one  in  which  the 
heirs  of  General  Lafayette  claimed  a  valuable  body 
of  land  under  the  grant  made  by  Congress  to  their 
ancestor.  The  New  Orleans  paper,  referring  to  the 
trial,  said:  "Our  new  Circuit  Judge,  John  A.  Camp 
bell,  is  giving  some  very  remarkable  illustrations  of 
the  promptitude  with  which  he  dispatches  business. 
.  .  .  Our  lawyers,  accustomed  to  the  delays  and 
tediousness,  and  never-ending  complexities  of  trials 
in  the  United  States  Courts,  have  been  greatly 
startled  at  the  rapidity  of  Judge  Campbell's  deci 
sions  which,  by  the  way,  are  as  wise,  able,  and 
learned  as  they  are  prompt  and  lucid  —  exempli 
gratia,  the  decision  which  will  be  found  in  our  paper 
to-day,  involving  the  protracted  and  vexed  litiga 
tion  relating  to  the  property  in  the  rear  of  our  city, 
claimed  by  Lafayette's  heirs.  The  argument  in  the 
case  was  concluded  on  Thursday  and  the  next  morn 
ing  Judge  Campbell  amazed  the  Bar  by  reading  his 
decision  in  the  case.  .  .  .  What  a  pity  the  Batture 
was  compromised  before  Judge  Campbell's  acces 
sion  to  the  Bench."  The  decree  was  affirmed  on  ap 
peal  to  the  Supreme  Court.1 

In  the  discharge  of  his  judicial  duties  at  New 
Orleans,  Judge  Campbell  was  called  upon  to  express 
his  views  regarding  the  conduct  of  prominent  men 
engaged  in  filibustering  expeditions  against  Cuba 
and  certain  Central  American  countries,  which 
brought  him  into  sharp  conflict  with  a  strong  public 
sentiment  and  illustrated  his  courage  in  the  per- 

1  Lafayette  vs.  Kenton,  18  Howard,  197. 


FILIBUSTERING  AND  SLAVE  TRADE    91 

formance  of  his  official  duties.  It  is  not  necessary  to 
enter  into  the  history  of  the  long  and  unsuccessful 
efforts  to  secure  the  freedom  of  Cuba.  Reference  will 
be  made  to  them  only  so  far  as  is  necessary  to  under 
stand  the  events  which  imposed  upon  Judge  Camp 
bell  the  discharge  of  duties  bringing  him  into  con 
flict  with  popular  opinion. 

Among  other  prominent  citizens  charged  with 
violation  of  the  neutrality  laws  in  connection  with 
the  Cuban  Rebellion  was  John  A.  Quitman,  at  that 
time  Governor  of  Mississippi.  Immediately  upon 
learning  of  the  indictment  against  him,  Governor 
Quitman  resigned  his  office  and  voluntarily  ap 
peared  before  the  Circuit  Court  at  New  Orleans. 
The  trial  of  Henderson  and  other  persons  indicted 
at  the  same  term  having  resulted  in  the  disagree 
ment  of  the  jury,  a  nolle  prosequi  was  entered  to  the 
indictment  against  Governor  Quitman,  in  February, 
1851.  But  the  failure  of  the  Lopez  expedition,  with 
its  tragic  results,  did  not  put  an  end  to  the  agitation 
or  formation  of  plans  by  American  citizens  for  the 
invasion  and  ultimate  annexation  of  Cuba  to  the 
United  States.  The  situation  had  become  so  acute 
that  President  Pierce,  following  the  example  of 
President  Fillmore,  issued  a  proclamation  warning 
the  people  against  the  violation  of  the  laws  of  neu 
trality.1 

At  the  Spring  Term,  1854,  of  the  Circuit  Court  at 
New  Orleans,  Judge  Campbell  charged  the  grand 
jury  at  length,  regarding  the  neutrality  laws,  espe 
cially  those  provisions  of  the  statute  which  declared 

1  Richardson:  Messages  and  Papers  of  the  Presidents,  v,  272. 


92        JOHN  ARCHIBALD  CAMPBELL 

that  an  organization  or  combination  formed  for  the 
purpose  of  invading  Spain  with  force  and  arms  was  a 
violation  of  the  neutrality  statute;  that  it  was  not 
necessary  that  arms  should  be  furnished  to  the  men 
in  the  United  States,  or  that  the  expedition  should 
leave  the  United  States.  The  evidence  of  such  a  plan 
would  consist  in  the  formation  of  companies,  asso 
ciates,  or  organized  bodies  of  men  in  the  United 
States,  animated  by  a  hostile  purpose  against  the 
Spanish  authorities  and  having,  as  their  ultimate 
destination,  Spanish  territory,  to  accomplish  that 
purpose  with  force.  He  instructed  them  that  all  who 
aided  or  assisted  in  the  formation  of  such  plans,  by 
donations  or  loans  of  money;  by  the  purchase  or  sale 
of  securities  for  the  payment  of  money  issued  by  a 
revolutionary  committee  or  government,  if  designed 
for  the  use  of  such  an  expedition  and  intended  to 
facilitate  it;  by  speeches,  letters,  or  publications, 
advising,  encouraging,  or  persuading  persons  to  join 
in  such  enterprises,  were  equally  guilty  as  those  who 
actually  took  part  in  such  expeditions. 

In  his  construction  of  the  Act  of  Congress  he  fol 
lowed  the  decision  of  the  Supreme  Court  in  Kennett 
vs.  Chambers.1  He  urged  the  grand  jury  to  make 
diligent  inquiry  for  the  purpose  of  ascertaining 
whether  any  persons  within  the  jurisdiction  of  the 
Court  had  violated  the  law.  Referring  to  recent 
events  in  Boston,  in  connection  with  the  enforce 
ment  of  the  Fugitive  Slave  Law,  he  said:  " There  is 
a  consideration  to  fortify  you  in  the  performance  of 
this  duty,  which  is  particularly  operative  at  this 

*  14  Howard,  24. 


FILIBUSTERING  AND  SLAVE  TRADE    93 

time.  The  exercise  of  some  of  the  powers  conferred 
in  the  interest  of  one  section  of  the  Union,  inflicts  a 
wound  upon  the  sensibilities  of  other  sections  of  the 
Union.  Some  of  these  powers  are  deemed  of  vital 
importance  to  this  portion  of  the  United  States.  We 
exact  the  fulfillment  of  the  compact  in  which  they 
i^re  formed  with  strictness,  and  applaud  the  power 
that  maintains  them.  Not  long  ago,  one  of  the  cities 
of  the  Northern  section  of  the  United  States  was  in 
volved  in  riot  and  disorder  in  the  attempt  to  main 
tain  these  stipulations.  This  portion  of  the  Union 
regards  these  expeditions  with  abhorrence,  as  de 
signed  to  secure  sectional  advantages  by  piratical 
and  lawless  outrages;  by  the  sacrifice  of  the  faith  of 
treaties  and  the  prostration  of  national  character. 
They  offend  their  sense  of  right,  jeopard  their  mate 
rial  interest,  and  mortify  their  national  pride.  How 
can  we  expect  these  people  to  maintain  their  com 
pacts  with  us  when  we  display  indifference  to  those 
to  which  we  are  parties,  and  in  which  they  are  so 
deeply  interested?  No  class  or  body  of  men  in  this 
quarter  of  the  country  should  be  countenanced  in 
placing  our  communities  in  a  condition  so  fatal  to 
their  own  interest.  In  my  judgment  it  is  the  duty  of 
all  good  citizens  to  frown  indignantly  upon  all  such 
lawless  enterprises  and  to  aid  the  public  authorities 
in  maintaining  the  laws  enacted  to  preserve  the 
faith  of  the  Union."  1  The  charge  was  published  in 
full  in  the  New  Orleans  papers  and  elicited  sharp 
criticism,  the  portion  referring  to  the  recent  events 
in  Boston  being  especially  resented. 

1  Chase,  F.  H.:  Lemuel  Shaw,  176. 


94        JOHN  ARCHIBALD  CAMPBELL 

On  July  1,  1854,  the  grand  jury  made  a  report  to 
the  Court,  stating  that  they  had  cited  a  number  of 
citizens  before  them  as  witnesses,  for  the  purpose  of 
ascertaining  whether,  as  rumored  in  the  city,  there 
was  an  expedition  on  foot,  the  tendency  and  purpose 
of  which  was  to  violate  the  neutrality  laws  of  the 
United  States.  Among  the  witnesses  cited  were  sev 
eral  whose  names  figured  most  prominently  with  the 
rumored  expedition,  who  declined  to  testify  on  the 
ground  that  to  do  so  would  criminate  themselves, 
under  the  ruling  of  the  Court.  They  also  reported 
that  the  impression  had  been  made  upon  their  minds 
that  the  rumors  were  not  altogether  without  founda 
tion;  that  they  inferred  that  meetings  had  been  fre 
quently  held  upon  the  subject  of  Cuban  affairs;  and 
that  what  were  termed  Cuban  bonds  had  been  is 
sued  and  funds  had  been  collected  either  by  contri 
butions  or  sale  of  the  bonds,  or  promises  to  pay,  to  a 
considerable  amount,  which  would  be  at  the  disposal 
of  Cuban  revolutionists;  but  that  they  had  not  been 
furnished  evidence  upon  which  they  could  find  a  bill 
of  indictment  against  any  one.  They  laid  before  the 
Court  the  names  of  those  persons  who  had  refused 
to  testify.  The  grand  jury  further  reported  that  they 
were  of  the  opinion  that,  while  much  had  been  writ 
ten  in  regard  to  the  subject,  the  facts  were  overrated 
and  magnified,  nothing  like  a  military  organization 
or  preparation  having  been  brought  to  their  notice. 
That  there  were  a  large  number  of  citizens  of  the 
United  States  whose  feelings  and  sympathies  were 
deeply  interested  in  behalf  of  what  was  termed  the 
Creole  or  native  population  of  the  Island  of  Cuba, 


FILIBUSTERING  AND  SLAVE  TRADE    95 

there  could  be  no  question.  However,  they  did  not 
think  any  organized  plan  existed  looking  to  a  mili 
tary  expedition  or  hostile  movement.  The  grand 
jury  deemed  it  inexpedient  to  prosecute  the  exami 
nation  of  witnesses  any  further  at  the  present  time, 
but  declared  that  they  would  continue  to  make  dili 
gent  inquiry  in  relation  to  the  subject  and  report 
further  to  the  Court. 

Upon  receiving  the  report,  Judge  Campbell  di 
rected  it  to  be  spread  upon  the  minutes  of  the  Court 
and  a  copy  transmitted  to  the  Secretary  of  State. 
He  expressed  his  gratification  at  the  action  of  the 
grand  jury  and  said  that  the  language  which  he  had 
used  was  that  of  the  Supreme  Court.  He  said  that  he 
would  require  the  witnesses  who  had  declined  to 
testify  to  enter  into  bonds  with  security  to  obey  the 
laws  of  the  United  States,  and  thereupon  issued  an 
order  requiring  John  A.  Quitman,  J.  S.  Thrasher, 
and  A.  L.  Saunders  to  appear  at  an  hour  named  to 
show  cause  why  they  should  not  be  required  to  give 
such  bonds  to  obey  the  laws  for  nine  months.  At  the 
hour  named  General  Quitman  appeared  and  said 
that,  upon  being  informed  that  a  subpoena  had  been 
issued  for  him,  he  had  appeared  voluntarily  before 
the  grand  jury;  that  he  had  been  dismissed  by  the 
jury,  and  now  wished  to  know  if  he  was  accused  of 
any  offense,  and  if  so  of  what  nature  and  who  was 
his  accuser.  He  desired  to  behave  with  all  respect  to 
the  Court,  but  also  to  maintain  his  rights  as  an 
American  citizen. 

Judge  Campbell  said  that  General  Quitman's 
question  was  pertinent,  explained  to  him  the  report 


96        JOHN  ARCHIBALD  CAMPBELL 

of  the  Grand  Jury,  and  referred  to  several  matters 
not  appearing  in  the  report.  General  Quitman  re 
plied  that  he  was  at  a  loss  to  understand  how  what 
occurred  before  the  grand  jury  became  public;  that, 
so  far  as  he  was  concerned,  the  report  was  not  cor 
rect,  as  he  had  not  stated  that  an  answer  to  any 
question  asked  him  would  tend  to  criminate  him.  In 
defense  of  his  right  as  an  American  citizen,  he  would 
refuse  to  enter  into  a  bond  unless  subjected  to  such 
duress  as  conflicted  with  his  duty  to  others.  He 
called  attention  to  the  fact  that  no  affidavit  had 
been  made,  no  specific  offense  charged,  and  the  re 
port  of  the  grand  jury  was  vague.  To  the  suggestion 
by  the  Judge  that  he  could  take  time  to  investigate 
the  law,  General  Quitman  replied  that  he  preferred 
to  have  the  matter  brought  to  an  issue  at  once,  and 
was  willing  to  be  considered  as  having  declined  to 
answer  the  question  submitted  to  him  by  the  grand 
jury. 

After  discussion  by  Mr.  Waul,  counsel  for  Quit 
man,  and  Mr.  Moise,  the  District  Attorney,  Judge 
Campbell  stated  that  he  had  investigated  the  au 
thorities  and  reached  the  conclusion  that,  not  as 
punishment  for  a  crime  committed,  but  for  prevent 
ing  the  commission  of  a  crime,  of  which  the  Court 
found  reasonable  ground  to  apprehend,  he  had  the 
power  to  require  the  respondents  to  enter  bond  to 
obey  the  law,  and  that  he  would  be  recreant  to  his 
duty  if  he  failed  to  do  so.  An  order  was  entered  ac 
cordingly.  But  Quitman  and  the  other  respondents 
raised  the  question  whether,  upon  the  report  of  the 
grand  jury  alone,  without  affidavit,  or  any  act  com- 


FILIBUSTERING  AND  SLAVE  TRADE    97 

mitted  or  threatened  in  the  presence  of  the  Court, 
the  Judge  could  ex  mero  motu  require  them  to  enter 
into  such  a  bond,  and  they  refused  for  the  time  being 
to  do  so.  The  Judge,  however,  was  firm  in  his  opin 
ion,  and  promptly  ordered  the  defendants,  as  he  in 
accurately  termed  them,  into  the  custody  of  the 
marshal.  His  action  brought  forth  such  a  storm  of 
criticism  and  denunciation  from  the  newspapers 
which  sympathized  with  the  filibuster  movement 
that  he  filed  with  the  Clerk  an  opinion  setting  forth 
the  grounds  upon  which  he  based  the  order  and 
the  authorities  sustaining  his  position.  A  copy  of  the 
opinion  was  furnished  to  the  city  papers  by  the 
Clerk,  at  their  request.  Judge  Campbell  referred  to 
Quitman  as  "an  accomplished  soldier,  having  a 
large  share  of  the  public  confidence,  especially  in 
those  States  which  border  on  the  Gulf  of  Mexico." 
He  was  a  man  of  marked  ability,  had  won  fame  as  a 
soldier  in  the  Mexican  War,  had  filled  with  distinc 
tion  the  office  of  Chancellor,  and  had  been  elected 
Governor  of  Mississippi.  At  the  time  of  his  contro 
versy  with  Judge  Campbell,  he  was  the  most  popular 
man  in  Mississippi.  Quitman' s  answer  was  a  spirited 
defense  of  his  course  and  a  severe  arraignment  of  the 
Judge  for  the  manner  in  which  he  had  dealt  with 
him.  He  filed  the  bond,  as  required,  under  protest. 
The  editorials  attacking  Judge  Campbell  disclosed 
the  existence  of  public  sentiment  favoring  the  libera 
tion  of  Cuba.  This  fact  was  the  ground  of  the  attack 
on  the  Court. 

A  well-prepared  and  temperate  article  was  pub 
lished  in  the  "True  Delta/7  signed  "S.  N.  T.,"  who 


98        JOHN  ARCHIBALD  CAMPBELL 

was  described  by  the  editor  as  "an  esteemed  and 
able  jurist."  It  is  probable  that  the  author  of  this 
article,  written  at  the  time,  has  given  a  fair  account 
of  the  incident  which  subjected  Judge  Campbell  to 
the  criticism  of  the  partisans  of  the  Cuban  cause.  He 
says:  "Undoubtedly  the  people  of  this  city  are 
much  in  favor  of  the  annexation  of  Cuba  to  our  Con 
federacy  and  sympathize  strongly  with  all  efforts  of 
the  population  of  the  island  to  effect  that  object.  Yet 
it  is  also  true  that  we  entertain  a  deep  respect  for  the 
laws  of  our  country,  as  well  as  for  the  persons  of 
those  who  fill  judicial  stations,  and  it  is  not  in  our 
nature  to  be  otherwise  than  dissatisfied  at  seeing  an 
upright  Judge,  no  less  conspicuous  for  his  probity 
than  his  great  legal  acquirements,  openly  accused  of 
arbitrary  conduct  in  office,  dangerous  to  the  liber 
ties  of  the  citizen,  and  hostile  to  those  principles  of 
constitutional  and  common  right  which  are  at  once 
the  guide  of  the  magistrate,  the  shield  of  the  citizen, 
and  the  protection  of  society."  He  proceeds  to  exam 
ine  the  charges  contained  in  General  Quitman's  let 
ter,  and  points  out,  by  reference  to  the  record  made 
by  the  grand  jury,  and  the  occurrences  in  the  court 
room,  that  they  are  either  without  foundation  or  in 
accurate. 

In  regard  to  the  legality  of  Judge  Campbell's  ac 
tion,  the  writer  says:  "There  is  probably  no  doubt 
in  the  mind  of  any  one  who  has  examined  the  law. 
To  the  thorough  vindication  of  that  right  contained 
in  Judge  Campbell's  opinion,  no  one  will  be  pre 
sumptuous  enough  to  believe  that  they  can  offer  any 
improvement;  no  attempt  of  the  kind  will  be  made 


FILIBUSTERING  AND  SLAVE  TRADE    99 

here;  none  can  read  it  without  being  convinced." 
After  quoting  from  the  Federal  statute  conferring 
upon  Federal  Judges  the  power  to  hold  persons  to 
the  security  of  the  peace  and  for  good  behavior  in 
cases  arising  under  the  Constitution  and  laws  of  the 
United  States,  he  says : 

" Those  powers  are  ample;  they  clothe  the  Judge 
with  all  the  powers  of  those  magistrates  whose  pe 
culiar  function  it  is  to  guard,  by  preventive  meas 
ures,  that  peace  which  is  the  sole  foundation  of  the 
social  structure  and  in  comparison  with  which  all 
individual  rights  are  necessarily  subordinate.  .  .  . 
Whether  Judge  Campbell  had  sufficient  ground  to 
act  upon,  in  the  case  of  General  Quitman,  some  may 
be  disposed  to  doubt,  some  to  deny,  but  it  will  be 
difficult  for  any  cool  and  candid  man  to  review  the 
whole  case  and  say  that,  under  the  circumstances, 
Judge  Campbell  was  not  right;  and  it  is  believed 
that  there  is  not  a  man  in  New  Orleans  who  will  be 
unwilling  to  admit  that  the  Judge  acted  under  the 
deepest  and  most  enlightened  sense  of  his  responsi 
ble  duties. 

"None  will  more  cheerfully  accord  to  General 
Quitman,  than  the  writer  of  these  lines,  the  full  meed 
of  praise  for  all  the  noble  deeds  he  has  done  for  his 
country;  none  follow  him  more  ardently  in  his  as 
pirations  for  the  extension  of  American  institutions 
to  the  people  of  Cuba;  but  truth  should  be  vindi 
cated  at  whatever  cost;  and  the  extension  of  Ameri 
can  principles  will  need  no  attack  upon  the  integrity 
and  honor  of  the  American  Judiciary." 

A  distinguished  lawyer  who  witnessed  the  course 


100      JOHN  ARCHIBALD  CAMPBELL 

pursued  by  Judge  Campbell  said:  "No  man  could 
have  borne  himself  with  more  dignity  or  wisdom,  in 
the  severe  ordeal  to  which  he  was  then  subjected. 
.  .  .  There  never  was  a  nobler  spectacle  presented  in 
a  Court  of  Justice,  than  this  magistrate  wisely  and 
calmly  controlling  turbulence  and  vindicating  the 
majesty  of  the  law."  1 

George  E.  Badger,  referring  in  the  United  States 
Senate  to  the  courage  exhibited  by  Judge  Curtis, 
presiding  at  Boston,  and  Judge  Campbell  at  New 
Orleans,  said:  "I  refer  to  the  fact  merely  of  the  ex 
citement  —  the  popular  outcry  and  the  manly  firm 
ness  of  the  Judges.  I  ask  how  important  it  must  be 
-  how  inexpressibly  important  for  our  Country  and 
its  institutions  it  is,  and  must  ever  be,  to  have  the 
Bench  adorned  by  magistrates  possessing  and  ex 
hibiting  such  qualities,  by  men  standing  like  a  rock, 
against  which  the  waves  of  popular  passion  and  the 
tumultuous  outbursts  of  angry  and  excited  and  se 
ditious  men  may  harmlessly  break,  leaving  the  lofty 
and  august  form  of  judicial  power  uninjured  and 
towering  far  above  them."  2 

At  the  June  Term,  1858,  of  the  Circuit  Court  at 
New  Orleans,  Judge  Campbell  was  called  upon  to 
try  the  case  against  William  Walker  and  Frank  An 
derson,  for  violation  of  the  neutrality  laws  in  organ 
izing  an  armed  force  and  invading  Nicaragua  and 
Costa  Rica.  In  his  charge  to  the  grand  jury,  prior  to 
the  finding  of  the  indictment,  Campbell  reviewed 

1  Bayne,  Thomas  L. :  Memorial  Addresses  —  Justice  Campbell. 

2  An  interesting  history  of  General  Quitman's  connection  with 
the  "Cuban  Cause"  is  given  in  Claiborne's  Life  of  General  John 
A.  Quitman,  n,  196  et  seq. 


FILIBUSTERING  AND  SLAVE  TRADE    lOl 

the  neutrality  laws  of  this  country,  concluding  with 
the  instruction:  "No  citizen  of  the  United  States, 
within  its  territory  or  jurisdiction,  can  accept  and 
exercise  a  commission,  or  enlist  as  a  soldier,  marine 
or  seaman;  or  engage  another  to  enlist  as  a  soldier, 
seaman,  or  marine,  or  to  go  beyond  the  United 
States  to  do  so,  to  serve  against  a  State,  people,  col 
ony,  or  sovereign,  with  whom  the  United  States  are 
at  peace.  Nor  can  they,  within  our  ports,  fit  out  or 
arm,  or  attempt  to  procure  arms,  or  be  concerned  in 
such  acts." 

The  jury  failed  to  reach  a  verdict  and  the  Dis 
trict  Attorney  entered  a  nolle  prosequi.  Judge  Camp 
bell  required  the  defendants  to  enter  into  security, 
binding  them  to  obey  the  neutrality  laws.  Walker 
and  his  friends,  as  appeared  to  be  customary  in  such 
cases,  criticized  the  Judge  in  a  public  speech.  A 
newspaper  controversy  resulted  in  which,  of  course, 
Judge.  Campbell  took  no  part. 

In  connection  with,  and  as  an  incident  of,  this 
trial,  Judge  Campbell  was  tendered  a  public  dinner 
by  a  number  of  citizens  of  Mobile.  "As  a  testimonial 
of  the  estimation  in  which  they  continue  to  hold  you 
for  the  learning,  firmness,  and  purity  with  which  you 
have  discharged  the  duties  of  your  exalted  posi 
tion."  Percy  Walker,  a  brother  of  General  William 
Walker,  joined  in  the  invitation,  saying  that,  while 
he  sympathized  with  his  brother's  efforts  to  "Ameri 
canize  Nicaragua,  and  did  not  approve  of  several 
of  Judge  Campbell's  acts,  and  while,  as  a  private 
citizen,  his  anxiety  to  secure  for  the  Southern  States 
a  controlling  position  in  Central  America  might 


J02      JOHN  ARCHIBALD  CAMPBELL 

cause  him  to  trench  closely  upon  a  breach  of  the 
neutrality  laws,  yet  he  had  no  right  to  condemn  a 
Judge  for  enforcing  them." 

Judge  Campbell,  in  declining  the  invitation, 
wrote:  "The  station  I  occupy  is  one  of  grave  re 
sponsibility  and  its  duties  are  full  of  difficulties.  A 
declared  object  of  the  Constitution  of  the  Union  is 
to  establish  justice,  and  of  the  justice  of  the  United 
States  the  Supreme  Court  is  the  special  depository. 
.  .  .  The  very  nature  of  this  jurisdiction  compels  the 
judicial  magistrate  of  the  Union  to  disregard  those 
attachments  and  to  control  those  affections  which 
would  give  a  preference  to  special  interests  or  local 
advantages.  In  favor  of  the  general  law,  he  must  re 
strain  the  aggressive  selfishness,  or  restless  egotism, 
that  would  evade  or  subvert  it;  he  can  make  no 
compromise  with  the  lawlessness,  force,  caprice,  de 
ceit,  or  cunning  that  would  overturn  a  policy  of  the 
Union.  He  can  have  no  other  aim  than  to  maintain 
the  Constitution  and  the  laws,  and  the  treaties  that 
conform  to  it,  in  the  fullness  of  their  spirit  and  the 
exactness  of  their  letter  with  honor  or  safety.  This 
has  been  the  object  of  my  judicial  life." 

At  a  Special  Term  of  the  Circuit  Court  at  Mobile, 
November,  1858,  Judge  Campbell  delivered  a  charge 
to  the  grand  jury,  which  subjected  him  to  criticism 
from  those  who  were  engaged  in  attempts  to  revive 
the  slave  trade.  He  denounced  the  traffic  as  piracy, 
and  urged  the  grand  jurors  to  discharge  their  duty 
by  bringing  in  bills  of  indictment  against  those  who 
aided  and  abetted,  directly  or  indirectly,  in  violat 
ing  the  statutes.  He  called  their  attention  to  the  fact 


FILIBUSTERING  AND  SLAVE  TRADE    103 

that  offenders  against  the  law  hoped  to  escape 
through  the  failure  of  the  officers  to  perform  their 
duty;  that  they  relied  upon  a  depraved  and  disso 
lute  public  sentiment  favoring  the  slave  trade,  or  a 
belief  that  sentiment  can  be  so  debauched  in  regard 
to  the  Federal  Union  and  Government  that  a  firm, 
steady,  and  exact  administration  of  the  law  can  be 
prevented  against  the  slave  trade;  that  those  who 
held  such  opinions  expected  the  law  to  be  nullified 
by  the  failure  of  grand  and  petit  juries  to  discharge 
their  duty.  He  further  said  that  it  could  not  be  de 
nied  that  numerous  instances  of  eccentricity  on  the 
part  of  juries  had  brought  reproach  upon,  and  some 
distrust  of,  this  great  institution  of  the  common  law; 
that  the  Court  had  received  information,  but  not 
evidence,  that  persons  engaged  in  carrying  on  the 
slave  trade  had  imported  African  slaves  into  the 
District;  that  they  had  sold,  purchased,  and  dis 
posed  of  them  here  in  violation  of  the  laws  of  the 
United  States.  He  told  the  grand  jurors  that  they 
had  been  called  together  for  the  specific  object  of 
making  diligent  inquiry  into  the  charge  that  the  law 
was  being  violated;  that  he  had  entire  confidence 
that  they  would  discharge  their  duty. 

At  the  May  Term,  1858,  of  the  Court  at  New  Or 
leans,  the  "New  Orleans  Bulletin"  said:  "Judge 
John  A.  Campbell  delivered  an  elaborate  charge  to 
the  grand  jury,  in  regard  to  the  African  slave  trade. 
.  .  .  He  gave  a  history  of  the  legislation  of  the  vari 
ous  Congresses  upon  this  subject,  extending  from 
the  Continental  Congress  in  1774  down  to  the  final 
acts  of  1820,  all  going  to  show  in  what  light  the 


104      JOHN  ARCHIBALD  CAMPBELL 

trade  was  held  by  men  of  all  parties  and  from  every 
portion  of  the  land,  including  all  the  illustrious  men 
of  the  country,  and  expressing  the  conviction  of  the 
Court  that  the  same  feelings  and  opinions  which 
have  prevailed  for  so  long  a  period  upon  the  subject 
still  prevail  in  the  minds  of  a  vast  majority  of  the 
people  of  the  United  States,  East,  West,  North,  and 
South." 

The  " Savannah  Republican"  referred  to  the 
charge  delivered  by  Judge  Campbell  as  "one  of  the 
ablest  and  most  decided"  that  the  editor  had  ever 
read,  saying:  "It  is  devoted  exclusively  to  the  slave 
trade  and  filibusterism,  and  reasserts,  more  point 
edly  and  emphatically  than  before,  all  the  general 
positions  which  the  same  honest,  fearless,  and  inde 
pendent  jurist  assumed  in  reference  to  those  sub 
jects  in  his  charge  to  the  grand  jury,  at  the  same 
place  some  months  before,  and  was  delivered,  as  the 
papers  inform  us,  with  an  earnestness  that  elicited 
profound  attention.  The  Judge  is  thoroughly  in 
earnest,  and  intends  that,  so  far  as  depends  on  him, 
the  laws  shall  be  fully  executed  in  letter  and  spirit. 
That  this  course  of  Judge  Campbell  will  raise  him  in 
the  estimation  of  the  great  mass  of  respectable  and 
intelligent  citizens  of  the  country,  South  and  North, 
East  and  West,  irrespective  of  party,  cannot,  for 
a  moment,  be  doubted.  He  has  shown  himself  the 
incorruptible  and  fearless  Judge  who  plainly  lays 
down  the  laws  and  calls  upon  his  sworn  co-associates 
to  perform  their  whole  duty  in  executing  them  to 
their  fullest  extent." 

Judge  Campbell  had  given  to  the  institution  of 


FILIBUSTERING  AND  SLAVE  TRADE     105 

slavery,  in  all  of  its  aspects,  anxious  thought  and 
careful  study.  He  wrote  for  the  "  Southern  Quarterly 
Review"  1  an  article  in  which  he  traced  the  origin  of 
slavery  in  different  countries  and  conditions,  in 
cluding  its  introduction  into  the  American  Colonies. 
He  examined  and  analyzed  the  debates  in  the  Con 
vention  of  1787,  followed  with  a  history  of  the  rise 
and  progress  of  the  movements  in  England  and 
America  for  its  abolition,  and  discussed  the  effect  of 
these  movements  upon  the  relation  of  the  master 
and  slave.  He  was  not  concerned  in  the  defense  of 
the  institution  or  the  course  pursued  by  its  advo 
cates  or  opponents,  but  rather  with  the  duties  and 
responsibilities  imposed  upon  the  governing  class. 
Regarding  the  situation  in  the  United  States  and 
the  duty  of  the  Southern  people,  he  says: 

"We  do  not  resist  the  conclusion  that  the  South 
ern  States  are  environed  by  difficulties  of  a  trying 
character,  and  that  the  counsels  of  cool,  dispassion 
ate,  and  circumspect  statesmen  are  needful  for  their 
removal.  .  .  .  The  experiments  in  the  islands  of  the 
West  Indies,  by  the  different  European  Powers, 
fully  prove  that  the  negro  race  is  susceptible  of  great 
improvement  and  thrives  by  liberal  and  indulgent 
treatment.  Our  own  experience  confirms  the  same 
fact,  and  we  believe  the  intercourse  between  master 
and  the  slave  in  the  Southern  States  is,  in  general, 
that  of  kindness  and  good- will.  Some  of  the  codes  of 
the  States,  however,  do  not  bear  that  expression, 
and  we  think  that  a  general  mitigation  of  the  pun 
ishments  for  crime  might  be  effected  without  im- 

1  June,  1847,  xn,  91. 


106      JOHN  ARCHIBALD  CAMPBELL 

pairing  the  efficacy  of  the  punishment.  Some  of  the 
provisions  of  the  codes  are  the  remnants  of  British 
Colonial  legislation,  and  others  have  been  intro 
duced  under  circumstances  of  excitement.  They  re 
main  without  execution  and  serve  only  as  arguments 
of  reproach. 

"A  more  important  alteration  of  our  laws  con 
sists  in  the  extension  to  slaves  of  a  protection  in 
their  domestic  relations.  The  connection  of  husband 
and  wife,  and  of  parent  and  child,  are  sacred  in  a 
Christian  community,  and  should  be  rendered  se 
cure  by  the  laws  of  a  Christian  State.  The  Church, 
centuries  before  the  abolition  of  personal  slavery, 
restrained  by  personal  censure  the  power  of  masters 
to  separate  husbands  and  wives.  Louis  XIV,  in  the 
1  Black  Code'  for  two  colonies,  introduced  provi 
sions  for  the  same  object.  The  Southern  Churches 
require  their  members  (slaves)  to  form  permanent 
connections.  There  is  an  obvious  propriety  in  plac 
ing  them  under  the  protection  of  the  laws. 

"  A  reform  scarcely  less  important  consists  in  ren 
dering  the  relation  of  master  and  slave  more  perma 
nent.  It  is  now  liable  to  be  disturbed  in  every  change 
that  occurs  in  the  pecuniary  condition  of  the  master. 
The  liability  of  the  slave  to  change  his  relation  on 
the  bankruptcy  of  his  master,  and  the  frequency 
with  which  it  occurs,  has  greatly  deteriorated  their 
character  and  deprived  the  relation  of  some  of  its 
patriarchal  nature.  The  condition  of  families  should 
be  permanent.  Those  domestic  relations  which  con 
tribute  so  much  to  the  happiness  of  the  members 
should  not  be  severed  at  the  pursuit  of  a  creditor. 


FILIBUSTERING  AND  SLAVE  TRADE     107 

The  great  end  of  society,  the  well-being  of  its  mem 
bers,  would  surely  be  promoted  by  withdrawing 
slaves,  in  some  measure,  from  the  market,  as  a  basis 
of  credit.  In  reference  to  this  same  subject,  we  may 
point  to  the  necessity  of  a  greater  diversity  of  em 
ployments  among  the  slave  population  and  a  conse 
quent  increase  of  their  mental  cultivation;  to  the 
prodigious  increase  of  their  numbers  and  the  neces 
sity  for  more  abundant  supplies  of  moral  and  reli 
gious  instruction. 

"We  sum  the  whole  of  our  duties  in  adverting  to 
the  fact  that  our  systems  were  formed  when  the 
blacks  were  fresh  from  their  native  Africa,  with 
gross  appetites  and  brutal  habits;  that  their  num 
bers  were,  in  comparison,  trifling;  and  that  they 
were  considered  with  simple  reference  to  their  rela 
tions  with  their  masters.  They  form  now  a  large  and 
continually  growing  community;  within  this  cen 
tury  they  will  number  10,000,000.  We  must  not  ex 
pect  that  the  regulations  which  suited  their  first 
condition  can  continue,  or  will  be  appropriate.  A 
statesman  could  fulfill  no  task  more  useful  than  that 
of  adapting  our  laws  to  the  varying  wants  of  our  so 
ciety.  We  know  of  no  responsibility  more  sacred 
than  that  which  devolves  upon  the  directing  minds 
of  our  Southern  States,  of  maintaining  sound  prin 
ciples  on  this  subject.  We  ought  not  to  ally  ourselves 
with  the  worn-out  maxims  of  other  ages,  but  main 
tain  steadily  and  systematically  the  ascendancy  of 
those  principles  of  progress  and  amelioration  which 
are  the  vital  essence  in  the  growth  of  a  well-organ 
ized  society/' 


108      JOHN  ARCHIBALD  CAMPBELL 

Judge  Campbell  was  a  member  of  the  Convention 
of  the  Southern  States  held  at  Nashville,  Tennessee, 
June  6,  1850,  and  introduced  the  resolutions  which, 
with  slight  change,  were  adopted,  setting  forth  the 
attitude  of  the  people  of  the  Southern  States  in  re 
gard  to  slavery  in  its  relation  to  the  Territories. 


CHAPTER  V 

EFFORTS  TO  AVERT  CIVIL  WAR 

JUDGE  CAMPBELL  had  avoided  being  drawn  into  the 
turbulent  political  currents  which,  under  the  influ 
ence  of  men,  North  and  South,  of  extreme  views  and 
revolutionary  purposes,  were  rapidly  carrying  the 
country  into  civil  war.  He  had  devoted  his  entire 
time  to  the  discharge  of  his  judicial  duties,  as  shown 
by  the  Supreme  Court  Reports,  at  each  term  writ 
ing  his  proportionate  share  of  the  opinions.  Several 
editorials  appeared  during  the  spring  of  1860,  refer 
ring  to  Judge  Campbell  as  a  possible,  if  not  probable, 
compromise  candidate  for  the  Presidency.  They  sug 
gested  his  acceptability  to  the  Northern  Democrats, 
if  Judge  Douglas  could  not  be  nominated,  referring 
to  the  position  which  he  had  taken  and  his  courage 
in  dealing  with  attempts  to  violate  the  statutes  pro 
hibiting  the  slave  trade  and  filibustering.  There  is  no 
evidence  that  he  took  any  notice  of  the  suggestion 
and  it  is  quite  certain  that  he  had  no  political  aspira 
tions.  Like  all  other  thoughtful  men,  he  could  not 
fail  to  see  and  be  impressed  by  the  dangers  threaten 
ing  the  peace  of  the  country,  as  the  political  parties 
divided  along  sectional  lines,  with  the  certainty  that 
the  more  conservative  elements  were  being  swept 
aside  by  those  who  were  determined  to  force  the 
question  of  slavery  to  the  forefront. 
•  The  campaign  of  1860,  resulting  in  the  election  of 
Mr.  Lincoln  by  a  strictly  sectional  vote,  strengthened 


110       JOHN  ARCHIBALD  CAMPBELL 

Campbell's  fears  and  excited  his  apprehension  in 
respect  to  the  course  which  the  Southern  leaders 
would  take.  In  a  letter  to  his  brother-in-law,  Daniel 
Chandler,  of  Mobile,  Alabama,  referring  to  the  elec 
tion,  he  wrote:  "The  election  for  electors  of  Presi 
dent  and  Vice-President,  having  resulted  in  favor  of 
the  Republican  Party,  the  persons  chosen  by  them 
must  be  inaugurated  if  the  Constitution  and  laws 
are  to  remain  in  force.  The  single  question  is  whether 
the  fact  of  their  election  affords  a  legitimate  cause 
for  the  overthrow  of  the  Union,  of  the  Constitution 
and  laws,  and  a  consequent  dissolution  of  these 
States.  I  shall  not  consider  the  question  of  the  natu 
ral,  moral,  or  constitutional  right  of  the  people  of 
Alabama  to  dissolve  the  Union.  My  purpose  is 
simply  to  consider  the  reasons  assigned  for  exercis 
ing  the  right,  supposing  it  be  conceded." 

After  setting  out  the  preamble  and  resolutions  of 
the  General  Assembly  of  Alabama  calling  a  conven 
tion,  adopted  prior  to  the  election,  discussing  the 
attitude  of  the  Republican  Party  toward  slavery,  he 
says:  "But  the  question  is,  whether  Mr.  Lincoln 
will  come  to  the  Presidential  office  with  '  the  unmis 
takable  aim  to  pervert  the  machinery  of  govern 
ment  to  the  destruction  of  its  members/  Does  this 
election  show  an  integral  of  mischief,  calculation, 
malice,  dispositions,  regardless  of  constitutional  or 
confederate  obligation,  and  fatally  set  to  work 
wrong  and  injustice?  No  man,  no  body  of  men,  is 
authorized  to  arouse  the  evil  passions,  the  restless 
desires,  proscription,  hate,  revenge,  incident  to  revo 
lution;  nor  to  disturb  the  clear  and  written  law,  the 


EFFORTS  TO  AVERT  CIVIL  WAR    111 

deep-trod  footmarks  of  duty,  quiet,  content,  and 
repose  of  civil  society,  upon  grievances,  speculative 
and  contingent,  or  upon  the  apprehension  of  evils 
that  are  not  imminent  and  beyond  the  reach  of 
regular  and  constitutional  modes  of  redress." 

After  pointing  out  the  constitutional  limitations 
upon  the  Executive  and  referring  to  instances  in  the 
history  of  the  country,  especially  the  election  of 
Jefferson  and  Jackson,  when  excited  apprehensions, 
arising  from  intense  political  feelings  and  passions 
were  not  realized,  he  says:  "The  fact  that  Mr.  Lin 
coln  has  been  chosen  President  of  the  United  States, 
in  my  opinion,  is  not  sufficient  cause  for  the  dissolu 
tion  of  the  Union.  The  circumstances  of  his  election 
impose  the  duty  of  moderation  on  his  part  and  cir 
cumspection  on  the  part  of  his  supporters  in  all  that 
concerns  the  irritating  and  disturbing  question  of 
slavery.  He  is  under  an  imperious  necessity  to  mould 
his  measures  of  administration  so  as  to  conciliate  the 
sober  and  calm  judgments  of  the  people.  I  do  not 
fear  the  influence  of  his  party  over  him  or  his  own 
disposition.  There  is  a  radical  division  in  his  own 
party,  and  he  was  chosen  because  he  was  more  con 
servative  and  constitutional  in  his  opinions  and 
ideas  than  his  opponent.  My  inquiries  of  most  re 
spectable  and  reliable  gentlemen  who  know  him, 
confirm  me  in  this  opinion." 

In  another  letter  to  Chandler,  two  days  later,  re 
ferring  to  Seward's  use  of  the  words  "irrepressible 
conflict,"  Judge  Campbell  says  that  he  did  not  at 
tach  to  them  the  same  importance  as  many  others 
had  done,  and  concludes  his  discussion  by  repeating 


112       JOHN  ARCHIBALD  CAMPBELL 

the  opinion  that  the  election  of  Lincoln  did  not  af 
ford  sufficient  ground  for  dissolving  the  Union.  He 
insisted  that  the  legal  status  of  slavery  in  the  Terri 
tories  was  upon  a  satisfactory  foundation:  that  the 
subject  of  the  rendition  of  fugitive  slaves  could  be 
adjusted  to  the  satisfaction  of  the  owner,  and  that 
separate  State  action  would  result  in  the  discredit 
and  defeat  of  every  measure  for  reparation  and  se 
curity.  He  says:  "My  commission  will  not  be  af 
fected  by  the  action  of  the  State.  But  I  determined, 
many  years  ago,  that  my  obligation  was  to  follow 
the  fortunes  of  her  people.  I  shall  terminate  my  con 
nection  with  the  Government  as  a  consequence  of 
her  acts."  This  letter  was  published  in  the  Mobile 
"Daily  Mercury/7  May  17,  1861.1 

On  January  21,  1861,  Campbell  wrote  to  Chand 
ler,  "I  think  the  result  of  the  entire  movement  [in 
Alabama]  will  be  injurious  to  the  other  States." 

His  letters  and  conduct  establish,  beyond  contro 
versy,  that  he  understood  and  appreciated  the  grave 
situation  by  which  the  Southern  people  were  con 
fronted.  He  was  of  the  opinion  that  they  were  en 
titled  to  expect  and  to  demand  the  recognition  and 
enforcement  of  their  constitutional  rights  in  the 
Union.  His  views  in  respect  to  these  rights  and  the 
extent  of  the  power  of  Congress  to  restrict  them 
were  expressed  in  his  opinion  in  the  Dred  Scott 
case.  He  also  believed  that,  unless  these  rights  were 
recognized  and  protected,  and  unless  the  agita 
tion  of  the  question  of  slavery  within  the  States 

1  George  W.  Duncan,  Alabama  Historical  Society  Transactions, 
1904,  vol.  5.  Reprint,  33. 


EFFORTS  TO  AVERT  CIVIL  WAR    113 

should  cease,  the  Union  would  be  dissolved,  but 
that  if  the  people  were  guided  by  moderate  coun 
sel  and  patriotic  purpose,  this  calamity  could  be 
averted. 

The  discussion  was  rapidly  passing  from  the  do 
main  of  law  into  a  sphere  where  sectional  hatred  and 
passion  controlled,  and  those  who  represented  and 
expressed  these  feelings  and  passions  in  both  sec 
tions  of  the  country  were  in  control.  Many  thought 
ful,  patriotic,  patient  men  hoped  and  believed  that, 
by  the  recognition  of  constitutional  obligations  and 
enforcement  of  constitutional  guarantees,  the  peace 
of  the  country  could  be  maintained  and  the  Union 
preserved.  These  men  did  not  comprehend  or  appre 
ciate  the  intensity  of  feeling  and  the  far-reaching 
effect  of  the  agitation  which  was  being  carried  on  by 
the  extreme  men  of  both  sections.  It  is  supposed, 
and  is  probably  true,  that  of  those  who  had  a  clear 
conception  of  the  character  of  the  controversy  and 
the  ultimate  outcome  of  the  struggle,  Lincoln  stood 
in  the  forefront.  He  had  declared  in  his  debate  with 
Douglas  that  "a  house  divided  against  itself  cannot 
stand,"  and  yet,  on  December  22,  1860,  he  wrote 
Alexander  H.  Stephens  i1 "  Do  the  people  of  the  South 
really  entertain  fears  that  a  Republican  Administra 
tion  would  directly  or  indirectly  interfere  with  the 
slaves  or  with  them  about  the  slaves?  .  .  .  The  South 
would  be  in  no  more  danger  in  this  respect  than  it 
was  in  the  days  of  Washington.  .  .  .  You  think  slav 
ery  is  right  and  ought  to  be  extended,  while  we  think 
it  is  wrong  and  ought  to  be  restricted.  That,  I  sup- 
1  Stephens,  A.  H.:  The  War  Between  the  States,  n,  266. 


114      JOHN  ARCHIBALD  CAMPBELL 

pose,  is  the  rub.  It  certainly  is  the  only  substantial 
difference  between  us." 

Judge  Campbell's  letters,  during  these  months, 
expressed  deep  solicitude  and  anxiety,  with  a  fixed 
purpose  to  do  all  in  his  power  to  allay  excitement 
and  counsel  the  people  to  sanity  of  thought  and 
moderation  of  speech  and  action.  He  insisted  that 
the  election  of  Lincoln  did  not  justify  the  action  or 
movements  of  extreme  Southern  leaders  looking  to 
a  dissolution  of  the  Union.  On  December  19,  1860, 
he  wrote  former  President  Franklin  Pierce  that  he 
had  conferred  with  the  President  and  advised  him  to 
send  accredited  commissioners  to  each  of  the  States 
in  which  it  was  proposed  to  hold  conventions. 
"There  is,"  he  said,  "a  wild  and  somewhat  hysteri 
cal  excitement  in  all  the  Southern  States,  and  espe 
cially  in  the  tier  of  States  from  South  Carolina  west 
to  the  Mississippi.  .  .  .  Those  who  have  attempted 
to  withstand  the  current  require  support  from  with 
out.  I  have  stated  to  the  President  that  I  know  of  no 
other  persons  in  the  United  States  whose  influence 
could  be  exerted  so  effectively  in  Alabama  as  yours, 
and  I  thought  that  you  would  not  hesitate  to  do 
whatever  lay  in  your  power  to  mitigate  or  to  avert 
the  calamity  of  a  disunion  of  the  States.  ...  I 
believe  that  a  final  settlement  of  this  slavery  ques 
tion  should  be  made,  or  that  disunion  should  fol 
low.  Agitation  cannot  be  carried  on  further  with 
out  a  civil  war.  The  question  is  for  both  sections, 
Shall  we  part  in  peace,  or  shall  we  make  a  consti 
tutional  settlement  of  every  open  question?  I  think 
that  a  constitutional  settlement,  at  all  events,  is 


EFFORTS  TO  AVERT  CIVIL  WAR    115 

better,  far  better,  than  a  sudden  and  violent  dis 
ruption." 

Pierce,  replying  to  this  letter,  said:  "I  doubly 
honor  the  devotion  with  which  you  cling  to  the 
Union."  He  expressed  the  belief  that,  notwithstand 
ing  the  "  gloom,  which  has  overshadowed  us  for  the 
last  few  weeks,  seems  to  be  now  shutting  down  more 
closely,  densely,  darkly,"  the  people  of  the  North 
ern  States  would  secure  to  those  of  the  South  their 
constitutional  rights,  saying,  "Many  of  them,  I 
have  no  doubt,  are  reading  to-day  with  new  light 
and  profound  surprise  the  concise  and  masterly  ad 
dress  of  Ex-Chief  Justice  Shaw,  Ex-Justice  Curtis, 
Chief  Justice  Parker,  and  their  associates." l 

On  December  29,  1860,  Campbell  wrote  Pierce 
that  he  had  submitted  his  letter  to  the  President 
and  Judge  Nelson,  "both  of  whom  approve  it 
strongly  and  suppose  that  its  publication  in  Ala 
bama  would  be  of  service  at  this  juncture."  He 
writes  despondently  of  the  future,  being  convinced 
that  the  radical  element  would  control,  and  conclud 
ing  his  letter,  says:  "I  cannot  hope  that  the  United 
States  more  than  any  other  country  can  be,  for  any 
great  length  of  time,  exempt  from  threatening  civil 
commotions.  They  have  existed  at  other  periods  of 
our  history  and  we  must  expect  them  to  recur.  This 
controversy  in  respect  to  slavery  disturbs  the  foun 
dations  of  the  social  system.  It  renders  not  only 
property  insecure,  but  disturbs  the  repose  and  order 
of  the  family  as  well  as  the  community.  Throughout 

1  Curtis:  A  Memoir  of  Benjamin  R.  Curtis,  I,  327;  Chase:  Lemuel 
Shaw,  177. 


116       JOHN  ARCHIBALD  CAMPBELL 

the  South  there  are  rumors  of  insurrectionary  at 
tempts  and  conspiracy  promoted  by  white  men,  sus 
pected  of  being  sent  to  the  South  for  the  purpose. 
I  suppose  that  many  of  these  rumors  have  no  foun 
dation  and  that  all  the  facts  of  any  case  are  exagger 
ated.  But  no  community  can  exist  and  prosper  when 
this  sense  of  insecurity  prevails." 

The  attitude  of  the  men  who  hoped  for  and  be 
lieved  compromise  possible  is  illustrated  by  a  con 
versation  between  John  J.  Crittenden,  William  H. 
Seward,  Stephen  A.  Douglas,  and  Judge  Campbell 
in  February,  1861,  of  which  Campbell  made  and 
preserved  a  " memorandum,"  in  which  he  wrote: 

"At  a  dinner  given  by  Senator  Douglas  to  the 
French  Minister  Mercier,  quite  a  large  party  was  col 
lected.  Among  the  guests  were  Crittenden,  Seward, 
of  the  Senate,  General  Wilson  and  Miles  Taylor, 
of  the  House  of  Representatives.  During  the  din 
ner  'Mr.  Seward  was  called  on  for  a  sentiment.  He 
required  the  company  to  fill  their  glasses  to  the 
brim  and  drain  them  to  the  bottom ;  that  his  was  the 
sentiment  which  was  worthy  of  that  homage  and 
that  all  could  join  in  rendering  it.  His  toast  was: 
'Away  with  all  parties,  all  platforms,  all  previous 
committals,  and  whatever  else  will  stand  in  the  way 
of  restoration  of  the  American  Union.' 

"  After  that  dinner  was  over,  Mr.  Crittenden  and 
myself  engaged  in  an  earnest  conversation  upon  the 
subject  of  his  resolutions  and  the  condition  of  the 
country.  While  I  was  speaking  to  him  on  the  subject 
of  slavery,  he  ran  from  his  seat  and  said  that  Seward 
must  hear  the  conversation.  He  left  me  and  found 


EFFORTS  TO  AVERT  CIVIL  WAR    117 

Mr.  Seward  and  brought  him  back  requesting  me  to 
repeat  what  I  had  been  saying  to  him.  My  observa 
tions  were  that  slavery  ought  not  to  form  a  cause  for 
the  dissolution  of  the  Union;  that  it  was  a  transitory 
institution  and  would  necessarily  be  modified  or  ab 
rogated  in  the  process  of  time;  that  it  had  been  regu 
larly  receding  to  the  South  and  Southwest  since  the 
adoption  of  the  Constitution,  and  now  more  rapidly 
than  at  any  time  before ;  that  so  regular  was  the  im 
migration  that  it  almost  followed  a  law  and  that  its 
progress  might  be  calculated;  that  the  States  at  the 
mouth  of  the  Mississippi  River  were  the  most  favor 
ably  situated  for  the  maintenance  of  the  institution, 
and  although  these  had  been  opened  to  immigration 
for  more  than  half  a  century,  they  were  not  yet  sup 
plied;  that  immigration  was  setting  rapidly  to  them 
from  the  border  States;  that  any  political  action  to 
affect  slavery  must  operate  in  these  States  to  be 
effectual,  and  that  for  twenty-five  years,  the  wants 
of  these  States  would  not  be  supplied  with  slaves, 
nor  would  the  tide  of  emigration  go  beyond  them. 
Mr.  Seward  said,  'Say  fifty  years.'  I  continued  that 
Congress  had  already  adopted  a  resolution  to  amend 
the  Constitution  to  protect  slavery  from  the  action 
of  the  Federal  Government  in  any  form,  and,  there 
fore,  that  no  operative  action  could  be  taken,  politi 
cally,  for  fifty  years.  Mr.  Seward  said,  'My  amend 
ment  contains  the  gist  of  the  whole  matter.'  I  replied 
that  I  regarded  his  amendment  as  the  most  far- 
reaching  and  important  measure  that  could  be  pre 
sented  on  that  subject,  and  that,  coming  from  him,  I 
regarded  it  as  a  concession,  for  that  he  had  taught 


118      JOHN  ARCHIBALD  CAMPBELL 

the  Northern  people  that  the  power  to  amend  the 
Constitution  had  been  given  principally  to  enable 
them  to  abolish  slavery  in  the  States  if  the  States 
did  not  do  so.  Mr.  S.  said, '  I  know  it,  Sir,  I  know  it/ 
I  continued  that  slavery  being  preserved  in  the 
State,  the  only  open  question  as  to  it  was  as  to  slav 
ery  in  New  Mexico;  that  the  Territory  had  been 
opened  for  slave  emigration  for  ten  years  and  only 
twenty-nine  slaves  had  been  carried  with  them.  He 
said,  'Only  twenty-four,  Sir/  I  asked  him  how  he 
could  reconcile  it  to  himself  as  an  American  states 
man  to  suffer  the  American  Union  to  be  jeoparded 
by  any  question  concerning  slavery  in  a  Territory 
where,  after  an  opportunity  for  ten  years,  only 
twenty-four  slaves  had  been  carried.  Mr.  S.  went  to 
a  center-table,  poured  some  brandy  into  a  glass,  and 
was  joined  by  Mr.  Crittenden  and  Mr.  Douglas.  He 
said  to  them,  'I  have  a  telegram  to-day  from 
Springfield,  in  which  I  am  told  that  Simon  Cameron 
will  not  be  Secretary  of  the  Treasury  and  that  Sal 
mon  P.  Chase  will  be,  and  that  it  is  not  certain  that 
Simon  Cameron  will  have  a  place  in  the  Cabinet, 
and  my  own  position  is  not  fully  assured.  What  can 
I  do?'  They  replied,  'I  see  your  situation/  the  one 
echoing  the  sentiment  of  the  other." 

That  Judge  Campbell  believed  that  a  State  had  a 
right,  when  a  majority  of  its  people  in  convention 
assembled  so  determined,  to  secede  from  the  Union, 
was  well  known.  He  had  ten  years  before  publicly 
declared  his  opinion  in  regard  to  this  question.  In  a 
letter  of  August  13, 1850,  addressed  to  a  mass  meet 
ing  in  Montgomery,  he  said:  "  Whenever  the  Federal 


EFFORTS  TO  AVERT  CIVIL  WAR    119 

Government,  and,  much  more,  when  a  single  depart 
ment  of  the  Federal  Government,  upon  a  question 
—  a  question  as  to  disputed  title  to  property  —  shall 
venture  to  employ  the  army  and  navy  of  the  Con 
federacy  to  subdue  one  of  its  members,  it  is  clear 
that  the  very  foundations  of  the  Union  are  at  once 
subverted/'  In  an  article  in  the  "  Southern  Quar 
terly  Review"  (January,  1851),  he  wrote:  "A  State 
may  dissolve  its  relation  to  the  Union  at  its  pleasure. 
Most  of  the  States  have  declared  the  inherent  and 
inalienable  power  of  modifying  their  government  as 
the  fundamental  principle  of  their  social  compact, 
and  some  of  the  States,  in  their  act  ratifying  the 
Federal  Constitution,  plainly  and  unequivocally  as 
serted  and  reserved  it."  This  he  was  taught  at  West 
Point,1 

The  State  of  Alabama  adopted  an  ordinance  of 
secession,  January  11,  1861.  By  this  act  on  the  part 
of  that  State,  Judge  Campbell  was  placed  in  a  very 
embarrassing  position.  He  had,  as  we  have  seen,  de 
clared  that  while  he  advised  strongly  against  it,  and 
regarded  it  as  unwise  and  unjustifiable,  he  would,  in 
obedience  to  his  conviction  in  respect  to  his  ultimate 
allegiance,  resign  his  position  and  return  to  the  State. 

To  understand  correctly  his  course  during  these 
days  of  trial,  in  which  so  many  honorable,  patriotic 
men,  both  North  and  South,  were  in  doubt  as  to 
where  their  duty  led,  it  is  necessary  to  give,  as  nearly 
as  possible  in  his  own  words,  a  history  of  his  acts 
and  the  motives  which  controlled  him.  Fortunately 

1  Gordon,  A.  C.:  Figures  from  American  History,  Jefferson 
Davis,  17. 


120       JOHN  ARCHIBALD  CAMPBELL 

he  made  at  the  time  and  carefully  preserved  a  record 
of  his  own  conduct  and  that  of  others  with  whom  he 
acted. 

In  the  negotiations  relative  to  the  evacuation  of 
Fort  Sumter,  Judge  Campbell  bore  an  important 
part.  His  conduct  in  this  matter  gave  rise  to  much 
discussion  and  subjected  him  to  misrepresentation 
and  criticism. 

By  reference  to  a  few  historic  facts  we  are  enabled 
to  understand  his  course  better  than  could  his  con 
temporaries.  The  seven  South  Atlantic  and  Gulf 
States  had  passed  ordinances  of  secession  and  their 
delegates  had  assembled  at  Montgomery,  Alabama, 
formed  a  Southern  Confederacy,  and  established  a 
Provisional  Government.  Fort  Sumter  and  other 
Southern  forts  were  still  garrisoned  by  Union 
troops.  General  P.  G.  T.  Beauregard,  with  a  force  of 
Southern  troops,  had  taken  possession  of  Fort  Moul- 
trie.  For  manifest  reasons  the  Provisional  Govern 
ment  strongly  desired  the  evacuation  of  Fort  Sum 
ter.  President  Buchanan  was  severely  criticized  in 
the  North  for  his  failure  to  reinforce  its  garrison. 
The  Montgomery  Government  sent  commissioners 
to  Washington  for  the  purpose  of  negotiating  with 
the  President  upon  the  subject  of  the  evacuation  of 
Fort  Sumter.  Both  parties  were  deeply  concerned 
respecting  the  course  which  the  border  States,  Mary 
land,  Virginia,  North  Carolina,  Tennessee,  Ken 
tucky,  Missouri,  and  Arkansas,  would  pursue.  Al 
though  the  efforts  at  compromise  of  the  slavery 
question,  which  had  been  made  during  the  winter  of 
1860  and  1861,  had  failed,  thousands  of  patriotic 


EFFORTS  TO  AVERT  CIVIL  WAR     121 

men,  devoted  to  the  Union  and  praying  for  its  pres 
ervation,  had  not  lost  hope  that  some  adjustment 
would  be  made  satisfactory  to  those  border  States. 
The  motive  for  securing  a  compromise  was  to  hold 
them  in  the  Union.1  For  this  reason  twenty-one 
States  accepted  the  invitation  of  Virginia  to  send 
delegates  to  a  Peace  Congress,  which  assembled  at 
Washington,  February  24,  1861. 2 

The  hope  that  a  solution  of  the  questions  at  issue 
would  be  found  was  well  supported  by  the  result  of 
the  elections  held  for  delegates  to  conventions  in  the 
border  States  during  the  spring  of  1861.  It  was  be 
lieved  that  if  the  status  quo  could  be  maintained  and 
no  act  of  coercion  resorted  to  until  the  Union  senti 
ment  in  those  States  could  be  crystallized,  they 
would  be  saved  to  the  Union  and  ultimately  the 
other  Southern  States  would  rescind  their  ordi 
nances  of  secession  and  return  to  the  Union.  This 
opinion  was  not  confined  to  the  Southern  States.3 

The  elections  showed  that  a  large  majority  in  the 
Convention  of  Missouri  were  opposed  to  secession. 

The  Legislature  of  Kentucky  refused  to  call  a 
convention. 

In  Tennessee  the  majority  of  the  popular  vote 
against  calling  a  convention  was  more  than  6700. 

In  North  Carolina  the  people  voted  against  call 
ing  a  convention,  and  elected,  if  called,  a  majority  of 
Union  men  as  delegates. 

1  Rhodes,  J.  F. :  History  of  the  United  States  from  the  Compromise 
of  1850,  i,  289. 

2  Curtis :  Life  of  James  Buchanan,  IT,  439. 

3  Bancroft,  Frederic :  Life  of  William  H.  Scward,  Appendix.  Let 
ters  from  John  A.  Gilmer  and  others  to  Seward. 


122       JOHN  ARCHIBALD  CAMPBELL 

A  majority  of  the  delegates  in  the  Virginia  Con 
vention  were  opposed  to  secession.1 

It  was  also  understood  that  Virginia  and  North 
Carolina,  upon  an  attempt  to  coerce  the  Southern 
States,  would  immediately  adopt  ordinances  of  se 
cession,  and  the  sequel  showed  that  this  was  true. 

Such  was  the  opinion  of  Judge  Campbell,  and  be 
cause  of  it,  at  the  invitation  of  Judge  Nelson,  he  un 
dertook  a  mission  of  which  he  has  preserved  a  com 
plete  record,  the  accuracy  of  which  is  sustained  by 
abundant  testimony  coming  from  witnesses  not  open 
to  the  suggestion  of  favor  to  him  or  to  the  Southern 
people.  The  statement  made  and  preserved  by  him, 
entitled  "  Facts  of  History,"  puts  the  transaction,  in 
all  of  its  aspects,  so  clearly  that  any  abridgment  of 
it  would  mar  its  completeness.  He  writes: 

"On  the  15th  of  March,  1861,  I  casually  met  Mr. 
Justice  Nelson,  of  the  Supreme  Court  of  the  United 
States,  on  the  Pennsylvania  Avenue,  Washington 
City,  returning  from  a  visit  to  Mr.  Secretary  Seward 
at  his  office.  He  informed  me  that  he  had  a  full 
conversation  with  Mr.  S.  upon  the  laws  relating  to 
navigation,  commerce,  and  revenue  and  the  im 
pediments  to  the  execution  of  those  laws  (without 
additional  legislation)  in  consequence  of  the  ordi 
nances  of  secession  in  the  Cotton  States.  These  im 
pediments,  in  his  opinion,  would  be  insuperable, 
except  by  the  use  of  military  force  and  danger  of  an 
immediate  civil  war.  He  told  me  that  Mr.  S.  expressed 
his  obligation  for  the  conversation,  and  his  satisfac- 

1  Stephens:  The  War  Between  the  States,  n,  364-68;  Munford, 
B.  B. ;  Virginia's  Attitude  Toward  Slavery  and  Secession,  257. 


EFFORTS  TO  AVERT  CIVIL  WAR     123 

tion  to  find  impediments  to  war  —  '  that  his  policy 
was  that  of  peace,  and  that  he  would  spare  no  effort 
to  maintain  peace/  Judge  N.  further  informed  me 
that  the  Commissioners  of  the  Confederate  States 
had  written  a  letter  requesting  a  reception  and  that 
negotiations  should  be  opened,  which  was  a  matter 
of  embarrassment  to  Mr.  S.;  that  the  Administra 
tion  was  adverse  to  the  reception  of  the  Commis 
sioners,  and  Mr.  S.  thought,  if  they  returned  home 
with  an  answer  of  refusal,  it  would  produce  irrita 
tion  at  the  South,  excitement  and  counter-irritation 
at  the  North,  to  the  jeopardy  of  counsels  of  peace. 
"I  returned  with  Judge  Nelson  to  his  hotel  and 
had  a  free  conversation  upon  the  matter  last  men 
tioned.  Our  conclusion  was  that  the  country  would 
be  better  satisfied  and  the  counsels  of  peace  pro 
moted  by  the  reception  of  the  Commissioners  and 
obtaining  from  them  a  full  exposition  of  their  de 
mands  and  the  reasons  on  which  they  were  founded; 
that  this  could  be  done,  without  any  recognition  of 
them  as  officers  of  an  organized  government  au 
thorized  to  hold  diplomatic  relations,  or  any  recog 
nition  of  the  Confederate  Government  itself  as  a 
subsisting  or  valid  representation  of  the  seceding 
States.  We  returned  to  Mr.  Seward's  office  to  en 
force  these  views  upon  him.  Mr.  Seward  heard 
what  we  said  with  courtesy  and  attention,  and  re 
plied  to  it:  That  not  a  member  of  the  Cabinet 
would  consent.  'Talk  with  Montgomery  Blair  and 
Mr.  Bates,  with  Mr.  Lincoln  himself,  they  are 
Southern  men,  and  see  what  they  say/  said  Mr.  S. 
No  one  of  them  would  agree.  'No/  he  proceeded, 


124      JOHN  ARCHIBALD  CAMPBELL 

'  if  Jefferson  Davis  had  known  of  the  state  of  things 
here,  he  never  would  have  sent  those  Commission 
ers.  It  is  enough  to  deal  with  one  thing  at  a  time. 
The  surrender  of  Sumter  is  enough  to  deal  with.'  He 
took  from  his  table  a  letter  from  Mr.  Weed,  whom 
he  described  to  be  a  statesman  and  a  patriot,  and 
read  to  this  effect:  "That  the  surrender  of  Sumter 
was  a  bitter  pill;  that  it  would  damage  the  party  in 
the  elections;  that  he  was  sure  he  could  have  made  a 
better  arrangement  with  the  Commissioners;  that 
they  would  have  been  willing  to  allow  Major  Ander 
son's  force  to  remain  in  the  fort,  without  molesta 
tion,  to  purchase  supplies  in  Charleston,  and  his 
regret  was  for  having  left  Washington  before  some 
thing  had  been  concluded.'  I  had  not  before  this  had 
a  hint  of  the  proposed  evacuation  of  Sumter,  and  re 
plied  to  Mr.  Seward  that  I  fully  agreed  with  him 
that  only  one  matter  should  be  dealt  with  at  a  time 
and  that  the  evacuation  of  Sumter  was  a  sufficient 
burden  upon  the  Administration;  that  too  much 
circumspection  could  not  be  employed  to  prevent 
agitation  or  excitement  of  the  public  mind.  I  said 
I  would  see  the  Commissioners  on  the  subject  and 
also  write  to  Mr.  Davis.  'What  shall  I  say  on  the 
subject  of  Fort  Sumter?'  He  said:  'You  may  say  to 
him  that  before  that  letter  reaches  him  (How  far  is 
it  to  Montgomery?) '  'Three  days.'  'You  may  say  to 
him  that  before  that  letter  reaches  him  the  tele 
graph  will  have  informed  him  that  Sumter  will  have 
been  evacuated.'  'What  shall  I  say  as  to  the  forts  in 
the  Gulf  of  Mexico?'  He  said:  'We  contemplate  no 
action  as  to  them;  we  are  satisfied  with  the  position 


EFFORTS  TO  AVERT  CIVIL  WAR    125 

of  things  there/  I  agreed  to  see  the  Commissioners 
on  that  day,  and  to  obtain  their  consent  to  a  delay 
of  their  demand  for  an  answer  to  their  letter,  and 
would  afford  him  an  answer.  Mr.  S.  said  he  must 
have  an  answer  that  day,  and  if  I  were  successful  I 
might  prevent  a  civil  war. 

"I  called  upon  Mr.  Crawford,  one  of  the  Com 
missioners,  and  informed  him  that  I  desired  to 
write  a  letter  to  Mr.  Davis;  that  I  wished  him  to  de 
fer  any  call  for  an  answer  to  his  letter  to  Mr.  Seward 
asking  a  reception  or  recognition  of  his  public  char 
acter  until  Mr.  D.'s  reply  was  received.  He  objected. 
He  said  that  the  Commissioners  had  been  sent  to 
obtain  a  recognition  from  the  United  States  and  a 
peaceful  settlement,  and  if  they  could  not  have 
those  that  they  would  return  to  their  people  and 
that  their  people  might  know  what  they  had  a  right 
to  expect.  I  informed  him  of  the  contemplated  ac 
tion  as  to  Sumter,  of  the  probable  continuance  of 
affairs  in  the  Gulf  without  alteration,  and  what  the 
conditions  might  be  of  hasty  or  irritating  action. 
After  some  discussion  he  consented  to  my  request, 
provided  I  would  assure  him  on  the  subject  of  Sum 
ter,  and  he  required  my  authority  for  my  assertion, 
informing  me  at  the  same  time  that  he  was  satisfied 
that  it  was  Mr.  Seward.  I  declined  to  give  him  any 
name  and  told  him  that  he  was  not  authorized  to 
infer  that  I  was  acting  under  any  agency;  that  I  was 
responsible  to  him  for  what  I  told  him  and  that  no 
other  person  was.  I  informed  him  that  Judge  Nelson 
was  aware  of  all  that  I  knew  and  would  agree  that  I 
was  justified  in  saying  to  him  what  I  did.  I  certified 


126       JOHN  ARCHIBALD  CAMPBELL 

in  writing  my  confident  belief  that  Sumter  would  be 
evacuated  in  five  days;  that  no  alteration  would  be 
made  in  the  condition  of  affairs  in  the  Gulf  prejudi 
cial  to  the  Confederate  States;  and  that  a  demand 
for  an  answer  to  his  letter  to  the  Secretary  would  be 
productive  of  evil.  He  preferred  to  write  the  letter  to 
Mr.  Davis  and  consented  to  the  requisite  delay. 

"I  informed  Mr.  Seward  of  this  the  same  day  by 
letter  and  of  the  communication  I  had  made.  At  the 
end  of  five  days  Mr.  Crawford  called  upon  me  to 
know  why  Sumter  had  not  been  evacuated.  I  re 
quested  him  to  inquire  of  General  Beauregard  the 
condition  of  affairs  at  the  fort.  General  B.  replied 
that  no  indication  of  an  evacuation  of  the  fort  had 
appeared,  but,  on  the  contrary,  that  Major  Ander 
son  was  at  work  on  the  fortifications.  I  requested 
Judge  Nelson,  who  was  still  in  Washington,  to  ac 
company  me  to  Mr.  Seward's  office.  We  found  Mr. 
Seward  much  occupied,  and  he  could  only  reply  to 
our  question  that  everything  was  right,  and  that  he 
would  certainly  see  us  the  following  day.  On  the  fol 
lowing  day  we  had  a  free  conversation  with  Mr.  S. 
He  spoke  of  the  prospect  of  maintaining  the  peace  of 
the  country  as  cheering.  Spoke  of  coercion  proposi 
tions  in  the  Senate  with  some  acerbity,  and  said,  in 
reference  to  the  evacuation  of  Sumter,  that  the  reso 
lution  had  been  passed  and  its  execution  committed 
to  the  President;  that  he  did  not  know  why  it  had 
not  been  executed;  that  Mr.  L.  was  'not  a  man  who 
regarded  the  same  things  important  that  you  or  I 
would,  and  if  he  did  happen  to  consider  a  thing  im 
portant,  it  would  not  for  that  reason  be  more  likely 


EFFORTS  TO  AVERT  CIVIL  WAR     127 

to  command  his  attention';  that  there  was  nothing 
in  the  delay  that  affected  the  integrity  of  the  prom 
ise  or  denoted  any  intention  not  to  comply.  I  asked 
him  of  the  intention  as  to  Pickens.  He  said  the  sta 
tus  of  Pickens  would  not  be  altered.  'You  shall 
know/  he  said,  'whenever  any  contrary  purpose  is 
determined  on.'  I  communicated  to  Commissioner 
Crawford  in  writing  what  was  the  result  of  my  in 
quiry,  and  informed  Mr.  Seward  what  I  had  written. 
"My  next  visit  to  Mr.  Seward  was  on  the  30th 
of  March.  On  that  day  Commissioner  Crawford 
brought  me  a  telegram  from  Governor  Pickens  of 
South  Carolina,  complaining  that  Colonel  Lamon 
had  been  permitted  to  visit  Fort  Sumter,  and  that, 
after  doing  so,  he  had  promised  to  return  to  Charles 
ton  in  a  few  days,  for  the  purpose  of  arranging  for  its 
surrender,  but  that  nothing  had  since  been  heard 
from  him.  Mr.  Seward  received  the  telegram  and 
promised  to  answer  me  on  Monday  (April  1st).  On 
the  first  of  April  he  stated  that  the  President  was 
concerned  at  the  contents  of  the  telegram  I  had  left 
with  him.  There  was  a  point  of  honor  involved;  that 
Colonel  Lamon  did  not  go  to  Charleston  under  any 
commission  or  authority  from  Mr.  Lincoln,  nor  had 
he  any  power  to  pledge  him  by  any  promise  or  as 
surance;  that  Mr.  Lincoln  desired  that  Governor 
Pickens  should  be  satisfied  of  this,  and  Colonel  La 
mon  was  in  an  adjoining  room,  and  that  he  would 
answer  any  question  I  would  ask  him  concerning 
the  matter.  I  declined  to  see  Colonel  Lamon,  but  I 
inquired  of  Mr.  Seward  what  I  should  report  upon 
the  subject  of  the  evacuation  of  Sumter.  Mr.  Seward 


128       JOHN  ARCHIBALD  CAMPBELL 

wrote  and  handed  me  a  writing  to  the  effect  'that 
the  President  may  desire  to  supply  Fort  Sumter,  but 
will  not  undertake  to  do  so  without  first  giving 
notice  to  Governor  Pickens.'  I  asked  Mr.  Seward, 
'  What  does  this  mean?  Does  the  President  design  to 
attempt  to  supply  Sumter?'  He  answered:  'No,  I 
think  not ;  it  is  a  very  irksome  thing  to  him  to  evacu 
ate  it.  His  ears  are  open  to  every  one,  and  they  fill 
his  head  with  schemes  for  its  supply.  I  do  not  think 
that  he  will  adopt  any  of  them.  There  is  no  design  to 
reinforce  it.'  I  then  said:  'If  there  be  no  formed  de 
sign  to  attempt  to  supply  or  to  reinforce  the  fort,  he 
should  not  express  a  desire  to  do  so.  The  evacuation 
is  not  considered  to  be  an  open  question  in  Charles 
ton,  and  in  their  State  they  would  regard  the  expres 
sion  of  a  desire  by  the  President  to  supply  the  fort  as 
evidence  of  an  intention  to  supply  and  reinforce  it; 
that  this  would  probably  lead  to  a  bombardment; 
that  it  was  difficult  to  restrain  the  people  as  it  was.' 
Mr.  Seward  said  he  must  be  particular  in  his  inter 
course  with  me,  and  that  he  would  go  to  see  the 
President.  He  left  me  in  his  office  and  was  absent 
some  minutes.  When  he  returned,  he  wrote  for  the 
answer  to  Governor  Pickens:  'I  am  satisfied  the 
Government  will  not  undertake  to  supply  Fort  Sum 
ter  without  giving  notice  to  Governor  Pickens.'  It 
was  understood  between  us  that  the  import  of  the 
conversations  previously  had,  was  not  affected  by 
what  had  taken  place. 

"During  the  first  week  in  April  it  became  appar 
ent  to  persons  in  Washington  City  that  some  im 
portant  decision  in  regard  to  the  questions  relative 


EFFORTS  TO  AVERT  CIVIL  WAR     129 

to  the  seceding  States  had  taken  place.  The  troops 
which  had  been  collected  there  were  removed;  ru 
mors  among  naval  officers  of  movements  of  vessels 
of  war  were  current.  There  had  been  an  unusual  con 
course  of  politicians  there,  and  the  tone  of  one  party 
became  more  menacing  and  of  the  other  more  anx 
ious  and  despondent.  I  recollect  to  have  heard  that 
an  expedition  for  the  relief  of  Sumter  had  been  re 
solved  on,  and  also  threatening  speeches  of  Presi 
dent  Lincoln  were  quoted.  Mr.  Crawford  applied  to 
me  for  a  fulfillment  of  the  pledge  for  the  evacuation 
of  Sumter  or  for  explanations. 

"On  the  7th  of  April  I  addressed  Mr.  Seward  a 
letter,  reciting  what  had  taken  place,  the  anxiety 
of  the  Commissioners,  and  asked  explanation.  I  ex 
pressed  to  him  an  apprehension  that  a  collision 
might  arise,  and  suggested  a  remedy.  My  com 
munication  referred  to  the  condition  both  of  Sumter 
and  Pickens.  His  reply:  ' Faithfully  kept  as  to  Sum 
ter,  wait  and  see;  other  suggestions  received  and 
will  be  respectfully  considered/  There  was  no  signa 
ture  to  this  note,  date,  etc.  The  address  was  merely 
on  the  envelope  that  enclosed  the  loose  piece  of 
paper  on  which  it  was  written. 

"The  Commissioners  concluded  from  this  that 
the  expedition  fitted  out  in  New  York  was  for  Pick- 
ens,  inasmuch  as  the  note  was  not  replied  to  in  refer 
ence  to  Pickens;  and  that  would  be  an  attempt  to 
supply,  but  not  reinforce,  Sumter.  They  concluded 
to  call  for  an  answer  to  their  letter  demanding  audi 
ence,  etc.  A  reply  written  on  the  15th  of  March  was 
handed  to  them.  They  subsequently  exhibited  to 


130       JOHN  ARCHIBALD  CAMPBELL 

me  a  fierce  attack  upon  Mr.  Seward,  which  they 
proposed  to  publish  or  to  send  to  Montgomery.  I 
objected  to  their  use  of  Mr.  Seward's  name.  I  stated 
to  Mr.  Crawford  that  I  had  assumed  all  the  respon 
sibility  of  the  intercourse,  and  had  not  appeared  as 
the  agent  for  Mr.  Seward  or  to  speak  at  his  request, 
and  that  I  had  expressly  stated  to  Mr.  Crawford 
that  he  was  not  to  infer  that  I  derived  information 
from  Mr.  S.  or  any  other  person  in  particular.  He 
acquiesced  in  the  accuracy  of  my  statement  and  ex 
punged  the  objectionable  paragraph.  The  Commis 
sioners  left  Washington  City  during  the  week,  and 
one  of  them  on  his  return  home  misrepresented  my 
relation  to  this  negotiation  and  endeavored  to  swell 
the  popular  outcry  that  then  existed  in  the  Southern 
country  against  me. 

"On  Thursday,  the  llth  of  April,  I  was  informed 
that  Mr.  Lincoln  had  said  that  none  of  the  vessels  of 
war  that  had  gone  to  sea  were  designated  for  Sum- 
ter;  that  the  expedition  to  Charleston  was  designed 
merely  to  ascertain  whether  the  South  Carolinians 
would  interfere  with  vessels  of  the  United  States 
employed  to  relieve  famishing  soldiers  of  the  United 
States  in  one  of  their  own  forts.  On  the  same  day  in 
formation  was  given  to  me  that  General  Beauregard 
had  summoned  Major  Anderson  to  surrender  Fort 
Sumter  as  a  preliminary  to  reducing  it,  in  the  event 
of  a  refusal.  This  information  came  through  a  tele 
gram  of  General  B.  to  the  Commissioners,  which 
their  secretary  exhibited  to  Mr.  Douglas,  who  had 
recommended  that  it  be  brought  to  me.  I  called  at 
Mr.  Seward's  office  and  dwelling  the  same  day,  but 


EFFORTS  TO  AVERT  CIVIL  WAR    131 

found  him  absent.  I  informed  Mr.  Frederick  Seward 
of  the  reported  remark  of  Mr.  Lincoln  and  the  dan 
ger  impending  for  Fort  Sumter,  and  proposed  that  I 
be  permitted  to  communicate  to  Governor  Pickens 
the  matter  contained  in  Mr.  Lincoln's  statement, 
expressing  the  opinion  that  it  would  prevent  the 
bombardment.  Mr.  F.  Seward  promised  to  see  his 
father  and  repeat  his  answer  the  same  evening  to  me, 
but  I  did  not  hear  from  him  on  the  subject.  The 
bombardment  of  Sumter  was  commenced  the  next 
day  and  the  result  was  published  in  Washington 
City  Sunday  morning.  Before  this  was  known,  I  ad 
dressed  a  respectful  letter  to  Mr.  Seward  requesting 
some  explanation  of  the  circumstances  which  had 
produced  this  great  calamity.  There  seemed  to  be 
testimony  to  show  that  his  assurances  to  me  had 
been  continued  after  the  decision  to  evacuate  Sum 
ter  (if  it  ever  existed)  had  been  abandoned.  To  this 
letter  I  had  no  reply. 

"The  preceding  narrative  will  explain  the  cause 
and  conditions  under  which  my  communications 
with  Mr.  Seward  and  the  Commissioners  took  place. 
My  interposition  was  voluntary,  and  my  object  was 
to  prevent  a  collision  between  the  seceding  States 
and  the  United  States.  My  hope  was  to  secure  peace 
and  to  prevent  a  civil  war.  I  believed  that,  in  pre 
venting  war,  a  settlement  would  be  made  that  would 
satisfy  the  sober,  considerate,  and  conservative  peo 
ple  in  all  the  States,  and  that  no  settlement  could  be 
made  otherwise.  I  informed  Commissioner  Crawford 
that  I  did  not  look  beyond  the  securing  of  peace; 
that  if  peace  brought  defeat  to  secession,  I  accepted 


132       JOHN  ARCHIBALD  CAMPBELL 

that  result  cheerfully.  I  desired  that  the  people 
should  have  an  opportunity  to  render  a  calm,  intelli 
gent,  and  undisturbed  judgment  upon  the  questions 
at  issue.  I  had  a  firm  belief  in  the  wisdom  of  the  solu 
tion  that  would  be  made.  I  opposed  the  secession  of 
Alabama  openly  and  publicly.  I  had  no  respect  for 
the  conceit  of  a  cotton  State  confederacy,  and  so  de 
clared  myself.  I  condemned  in  strong  terms  all  that 
resembled  a  conspiracy  against  the  union  of  the 
States,  and  took  no  part  whatever  in  any  of  the 
measures  that  tended  to  secession  or  disunion.  I  had 
no  correspondence  with  the  Montgomery  Govern 
ment,  and  there  was  not  then,  nor  has  there  been  at 
any  time  since,  any  great  cordiality  between  the 
leading  members  of  that  Government  and  myself." 

Copies   of  notes  from  William  H.   Reward,  Secretary  of 

State,  in  April,  1861,  without  date,  filed  with 

Judge  Campbell's  "statement" 

1.  "I  am  satisfied  the  Government  will  not  under 
take  to  supply  Sumter  without  giving  notice  to 
Governor  P."  (No  signature.) 

No.  2.  "  Confidential. 

"  Faith  as  to  Sumter  fully  kept.  Wait  and  see. 
Other  suggestions  received  with  views  (?)  thanks 
and  high  respect." 

Envelope  endorsed: 

"The  Honorable  J.  A.  Campbell 

"Justice  of  Supreme  Court 

"Washington,  B.C." 

If  it  is  suggested  that  this  is  an  ex  parte,  "self- 
serving"  statement,  the  answer  is  found  in  the  fact 


EFFORTS  TO  AVERT  CIVIL  WAR    133 

that,  on  April  13,  1861,  Campbell  addressed  the  fol 
lowing  letter  to  Seward,  a  copy  of  which  he  made 
and  preserved: 

WASHINGTON  CITY,  April  13,  1861 
SIR: 

On  the  15th  March  ult.  I  left  with  Judge  Craw 
ford,  one  of  the  Commissioners  of  the  Confederate 
States,  a  note  in  writing  to  the  effect  following: 

"I  feel  entire  confidence  that  Fort  Sumter  will  be 
evacuated  in  the  next  five  days  and  this  measure  is 
felt  as  imposing  great  responsibility  on  the  Admin 
istration. 

"I  feel  entire  confidence  that  no  measure  chang 
ing  the  existing  status  prejudicially  to  the  Southern 
Confederate  States  is  at  present  contemplated. 

"I  feel  entire  confidence  that  an  immediate  de 
mand  for  an  answer  to  the  communication  of  the 
Commissioners  will  be  productive  of  evil  and  not  of 
good.  I  do  not  believe  that  it  is  right  at  this  time  to 
be  pressed.'7 

The  substance  of  this  statement  I  communicated 
to  you  the  same  evening  by  letter. 

Five  days  elapsed  and  I  called  with  a  telegram 
from  General  Beauregard  to  the  effect  that  Sumter 
was  not  evacuated,  but  that  Major  Anderson  was  at 
wrork  making  repairs. 

The  next  day,  after  conversing  with  you,  I  com 
municated  to  Judge  Crawford,  in  writing,  that  the 
failure  to  evacuate  Sumter  was  not  the  result  of  bad 
faith,  but  was  attributable  to  causes  consistent  with 
the  intention  to  fulfill  the  engagement,  and  that,  as 
regards  Pickens,  I  should  have  notice  of  any  design 


134       JOHN  ARCHIBALD  CAMPBELL 

to  alter  the  existing  status  there.  Mr.  Justice  Nelson 
was  present  at  these  conversations,  three  in  number, 
and  I  submitted  to  him  each  of  my  written  com 
munications  to  Judge  Crawford  and  informed  Judge 
C.  that  they  had  his  (Judge  Nelson's)  sanction.  I 
gave  you  on  the  22d  March  a  substantial  copy  of  the 
statement  I  have  made  on  the  15th. 

The  20th  March  arrived,  and,  at  that  time,  a  tele 
gram  came  from  Governor  Pickens  inquiring  con 
cerning  Colonel  Lamon. 

I  left  that  with  you  and  was  to  have  an  answer  the 
following  Monday  (1st  April). 

On  the  first  of  April  I  received  from  you  the  state 
ment  in  writing:  "(I  am  satisfied)  the  Government 
will  not  undertake  to  supply  Sumter  without  giving 
notice  to  Governor  P."  The  words  "I  am  satisfied" 
were  for  me  to  use  as  expressive  of  confidence  in  the 
remainder  of  the  declaration.  The  proposition,  as 
originally  prepared  was,  "The  President  may  desire 
to  supply  Sumter,  but  will  not  do  so,"  etc.,  etc.,  and 
your  verbal  explanation  was  that  you  will  not  be 
lieve  any  such  attempt  would  be  made,  and  that 
there  was  no  design  to  reinforce  Sumter. 

There  was  a  departure  here  from  the  pledges  of 
the  previous  month,  but,  with  the  verbal  explana 
tions,  I  did  not  consider  it  a  matter  then  to  com 
plain  of.  I  simply  stated  to  you  that  I  had  that  as 
surance  previously. 

On  the  7th  of  April  I  addressed  you  a  letter  on  the 
subject  of  the  alarm  that  the  preparations  by  the 
Government  had  created  and  asked  you  if  the  as 
surances  I  have  given  were  well  or  ill  founded. 


EFFORTS  TO  AVERT  CIVIL  WAR    135 

In  respect  to  Sumter,  your  reply  was,  "Faith  as  to 
Sumter  fully  kept.  Wait  and  see." 

In  the  morning's  paper  I  read,  "An  authorized 
messenger  from  President  Lincoln  informed  Governor 
Pickens  and  General  Beauregard  that  provisions 
will  be  sent  to  Fort  Sumter  peaceably  or  otherwise 
by  force."  This  was  the  8th  of  April  at  Charleston, 
the  day  following  your  last  assurance,  and  is  the 
evidence  of  the  full  faith  I  was  invited  to  wait  for 
and  see. 

In  the  same  paper  I  read  that  intercepted  dis 
patches  disclose  the  feat  that  Mr.  Fox,  who  had 
been  allowed  to  visit  Major  Anderson  on  the  pledge 
that  his  purpose  was  pacific,  employed  his  oppor 
tunity  to  devise  a  plan  for  supplying  the  fort  by 
force,  and  that  this  plan  had  been  adopted  by  the 
Washington  Government,  and  was  in  process  of  exe 
cution. 

My  recollection  of  the  date  of  Mr.  Fox's  visit  car 
ries  it  to  a  day  in  March.  I  learn  that  he  is  a  near 
connection  of  a  member  of  the  Cabinet.  My  connec 
tion  with  the  Commissioners  and  yourself  was  su 
perinduced  by  a  conversation  with  Justice  Nelson. 
He  informed  me  of  your  strong  disposition  in  favor 
of  peace  and  that  you  were  oppressed  with  a  demand 
of  the  Commissioners  of  the  Confederate  States  for  a 
reply  to  their  first  letter,  and  that  you  desired  to 
avoid  it,  if  possible,  at  that  time.  I  told  him  I  might 
perhaps  be  of  some  service  in  arranging  the  diffi 
culty.  I  came  to  your  office  entirely  at  his  request 
and  without  the  knowledge  of  either  of  the  Com 
missioners.  Your  depression  was  obvious  to  both 


136       JOHN  ARCHIBALD  CAMPBELL 

Judge  N.  and  myself.  I  was  gratified  at  the  charac 
ter  of  the  counsels  you  were  desirous  of  pursuing, 
and  much  impressed  with  your  observation  that  a 
civil  war  might  be  prevented  by  the  success  of  my 
mediation.  You  read  a  letter  of  Mr.  Weed  to  show 
how  irksome  and  responsible  the  withdrawal  of  the 
troops  from  Sumter  was  —  a  portion  of  my  com 
munication  to  Judge  Crawford,  on  the  15th  of 
March,  was  founded  upon  one  of  these  remarks,  and 
the  pledge  to  evacuate  Sumter  is  less  forcible  than 
the  words  you  employed.  Those  words  were,  "  Be 
fore  this  letter  reaches  you"  (a  proposed  letter  by 
me  to  President  Davis)  "Sumter  will  have  been 
evacuated."  The  Commissioners  who  received  those 
communications  conclude  that  they  have  been 
abused  and  overreached.  The  Montgomery  Govern 
ment  hold  the  same  opinion.  The  Commissioners 
have  supposed  that  my  communications  were  with 
you,  and,  upon  this  hypothesis,  propose  to  arraign 
you  before  the  country  in  connection  with  the  Presi 
dent.  I  placed  a  peremptory  prohibition  upon  this  as 
being  contrary  to  the  terms  of  my  communication 
with  them.  I  pledged  myself  to  them  to  communi 
cate  information  upon  what  I  considered  as  the  best 
authority,  and  they  were  to  confide  in  the  ability  of 
myself,  aided  by  Judge  Nelson,  to  determine  upon 
the  credibility  of  my  informant.  I  think  no  candid 
man  who  will  read  what  I  have  written  and  consider 
for  a  moment  what  is  going  on  at  Sumter  but  will 
agree  that  the  equivocating  conduct  of  the  Adminis 
tration,  as  measured  and  interpreted  in  connection 
with  these  promises,  is  the  proximate  cause  of  the 


EFFORTS  TO  AVERT  CIVIL  WAR     137 

great  calamity.  I  have  a  profound  conviction  that 
the  telegrams  of  the  8th  of  April  of  General  Beaure- 
gard  and  of  the  10th  of  April  of  General  Walker,  the 
Secretary  of  War,  can  be  referred  to  nothing  else 
than  their  belief  that  there  had  been  systematic 
duplicity  practiced  on  them  through  me.  It  is  under 
an  oppressive  sense  of  the  weight  of  this  responsibil 
ity  that  I  submit  to  you  these  things  for  your  ex 
planation. 

Very  respectfully 

JOHN  A.  CAMPBELL 
HON.  WM.  H.  SEWARD 

Secretary  of  State 

Receiving  no  answer  to  his  request,  on  April  20, 
1861,  Campbell  addressed  the  following  letter  to 
Seward,  to  which  no  reply  was  sent : 

WASHINGTON  CITY,  April  20,  1861 
SIR: 

I  enclose  you  a  letter  corresponding  very  nearly 
with  one  I  addressed  you  one  week  ago  (April  13th) 
to  which  I  have  not  any  reply.  The  letter  is  simply 
one  of  inquiry  in  reference  to  facts  concerning  which 
I  think  I  am  entitled  to  an  explanation.  I  have  not 
adopted  any  opinion  in  reference  to  them  which  may 
not  be  modified  by  explanation.  Nor  have  I  affirmed, 
nor  do  I  in  this,  any  conclusion  of  my  own,  unfavor 
ably  to  your  integrity  in  the  whole  transaction.  All 
that  I  have  said  and  mean  to  say  is,  that  an  explana 
tion  is  due  from  you  to  myself.  I  will  not  say  what  I 
shall  do  in  case  this  request  is  not  complied  with,  but 
I  am  justified  in  saying  that  I  shall  feel  at  liberty  to 


138      JOHN  ARCHIBALD  CAMPBELL 

place  these  letters  before  any  person  who  is  entitled 
to  ask  an  explanation  of  them. 
Very  respectfully 

JOHN  A.  CAMPBELL,  Associate  Justice 

Supreme  Court  of  the  United  States 
HON.  WM.  H.  SEWARD 

Secretary  of  State 

Judge  Campbell,  in  his  statement  written  at  Fort 
Pulaski,  filed  with  the  War  Department,  and  re 
ferred  to  the  Attorney-General,  July  10,  1865,  gave 
the  Administration  an  opportunity  to  deny  the 
truth  of  the  " Facts  of  History"  and  make  an  inves 
tigation  of  his  conduct  and  motives  between  March 
15  and  April  13,  1861.  Mr.  Seward  was  at  that  time 
Secretary  of  State.  In  that  statement  Campbell  says: 
"I  was  opposed  to  the  Act  of  Secession  of  the  State 
of  Alabama.  That  opposition  was  open,  public,  and 
declared.  The  cause  for  secession  was  regarded  by 
me  as  inadequate.  My  opinions  were  well  known  and 
had  the  effect  to  arouse  against  me  hostility  and 
proscription.  I  was  unwearied  in  the  winter  of  1861 
in  efforts  to  produce  a  settlement.  Through  the 
Honorable  Montgomery  Blair,  I  opened  a  com 
munication  with  President  Lincoln  and  offered  to  be 
the  medium  of  a  communication  to  the  people  of 
Alabama.  I  was  consulted  by  Mr.  Crittenden  upon 
his  resolutions.  I  attempted  to  procure  commission 
ers  to  be  sent  to  the  States  to  engage  them  to  post 
pone  action;  Mr.  Buchanan  at  one  time  consented 
to  do  this.  I  aided  in  the  consultation  of  members 
of  the  Peace  Congress.  I  endeavored  to  avert  the 


EFFORTS  TO  AVERT  CIVIL  WAR    139 

calamity  of  war  by  preventing  military  collision.  I 
was  a  Union  man  and  believed  that  a  few  months 
of  peace  would  save  the  Union.  I  have  this  opinion 
still.  I  did  not  resign  to  'aid  the  Rebellion/  In  No 
vember,  1860,  before  the  secession  of  my  State,  I 
received  a  letter  from  Daniel  Chandler,  Esq.,  of 
Mobile,  Alabama,  my  former  partner  and  brother- 
in-law,  requesting  my  opinion  upon  the  proposed 
secession  of  Alabama.  My  answer  was  very  full  and 
explicit  in  condemnation  of  the  measure,  and  for 
reasons  that  were  set  forth  at  large.  In  that  letter  I 
stated  to  him  that  if  the  State  should  secede  I  would 
resign  my  position  in  the  Supreme  Court.  This  letter 
was  not  written  for  publication,  and  consent  to  its 
publication  being  asked  for  was  withheld,  but  it  was, 
notwithstanding,  published  in  December,  1860.  My 
belief  was  firm  that  the  measure  of  secession  would 
produce  war,  unless  there  was  a  sobriety,  modera 
tion,  unanimity,  and  disposition  for  conciliation  and 
forbearance,  which  the  circumstances  then  existing 
forbade  me  to  hope  or  expect.  My  relations,  friends, 
and  former  associates  were  generally  secessionists.  I 
supposed  that  questions  would  arise,  such  as  have 
arisen,  that  would  impose  a  heavy  weight  of  respon 
sibility  upon  the  Judiciary  Department  and  excite 
all  the  passions  and  powers  of  the  country.  I  felt 
that  it  would  be  impossible  for  a  person  of  my  rela 
tions  to  obtain  the  confidence  or  respect  of  either 
section  of  the  country  in  that  position.  I  supposed 
that  the  war  would  be  long,  disastrous,  and  desolat 
ing.  At  this  early  date,  I  made  up  my  mind  on  the 
subject.  My  friends  spoke  of  it  and  wrote  of  it  to  me. 


140      JOHN  ARCHIBALD  CAMPBELL 

Chief  Justice  Taney,  in  my  last  interview  with  him, 
'  acquiesced '  in  the  propriety  of  the  step.  Mr.  Jus 
tice  Nelson  regretted  it,  but  thought  that  it  was 
natural  and  proper.  I  have  never  understood  that 
my  brethren  impugned  the  integrity  of  my  motives. 
I  communicated  to  Mr.  Attorney-General  Bates 
in  April,  1861,  the  necessity  of  my  condition,  but 
pledged  myself  to  him  to  aid  in  reestablishing  the 
Union,  if  peace  could  be  maintained." 

Judge  Campbell's  statement  in  regard  to  his  ef 
forts  to  prevent  secession  and  avert  war  are  sus 
tained  by  Jeremiah  S.  Black,  of  whom  it  has  been 
truly  said  that  he  "  reverenced  the  Constitution, 
and  had  a  respect  for  law  worthy  of  a  Roman  states 
man  of  noblest  type.  .  .  .  [He  was]  a  man  who  hated 
shams  and  meanness  of  all  sorts,  [and  was  of]  abso 
lute  and  unquestioned  purity."  1 

Judge  Black  says:  "When  the  troubles  were  at 
their  worst,  certain  Southern  gentlemen,  through 
Judge  Campbell  of  the  Supreme  Court,  requested 
me  to  meet  Mr.  Seward  and  see  if  he  would  not  give 
them  some  ground  on  which  they  could  stand  with 
safety,  inside  the  Union.  I  consented  and  we  met  at 
the  State  Department.  The  conference  was  long  and 
earnest."  2 

That  there  was  no  concealment  of  his  conduct  by 
Judge  Campbell  is  shown  by  a  letter  from  Edwin  M. 
Stanton  to  James  Buchanan,  May  19,  1861,  in 
which  he  writes:  "You  will  see  in  the  New  York 
papers  Judge  Campbell's  report  on  the  negotiations 

1  Rhodes:  History  of  the  United  States,  in,  243. 
*  Black:  Speeches  and  Essays,  156. 


EFFORTS  TO  AVERT  CIVIL  WAR    141 

between  himself  and  Mr.  Seward,  to  which  I  re 
ferred  in  my  letter  of  last  week.  They  had  been  re 
lated  to  me  by  the  Judge  about  the  time  they  closed. 
Mr.  Se ward's  silence  will  not  relieve  him  from  the 
imputation  of  deceit  and  double-dealing  in  the 
minds  of  many,  although  I  cannot  believe  that  it  can 
be  justly  imputed  to  him.  I  have  no  doubt  that  he 
believed  Fort  Sumter  would  be  evacuated  as  he 
stated  that  it  would  be.  But  the  war  party  over 
ruled  him  with  Lincoln,  but  he  could  not  give  up  his 
office.  That  is  a  sacrifice  no  Republican  will  be  apt  to 
make.  But  this  correspondence  shows  that  Mr. 
Frederick  Seward  was  not  in  the  line  of  truth  when 
he  said  that  negotiations  ceased  on  the  4th  of  March. 
The  'New  York  Evening  Post7  is  very  severe  on 
Judge  Campbell,  and  very  unjustly  so,  for  the  Judge 
has  been  as  anxiously  and  patriotically  earnest  to 
preserve  the  Government  as  any  man  in  the  United 
States  and  he  has  sacrificed  more  than  any  other 
Southern  man,  rather  than  yield  to  the  secessionists. 
I  regret  the  treatment  he  has  received  from  Mr. 
Seward  and  the  'Post.'"  l 

Stanton  had,  on  May  16,  1861,  written  to  Bu 
chanan:  "The  fling  of  Mr.  F.  W.  Seward  about  ' ne 
gotiations'  would  merit  a  retort  if  there  were  an 
independent  press,  and  the  state  of  the  times  ad 
mitted  discussion  of  such  matters.  The  negotiations 
carried  on  by  Mr.  Seward  with  the  Confederate 
Commissioners  through  Judge  Campbell  and  Judge 
Nelson  will,  some  day,  be  brought  to  light,  and  if 

1  Curtis:  Life  of  James  Buchanan,  n,  549;  New  York  Evening 
Post,  May  17,  18G1. 


142      JOHN  ARCHIBALD  CAMPBELL 

they  are  as  represented  to  me,  Mr.  Seward  and  the 
Lincoln  Administration  will  not  be  in  a  position  to 
make  sneering  observations  respecting  any  negotia 
tion  during  your  administration."  1 

Mr.  Rhodes,  after  careful  examination  of  the 
" Seward-Campbell  Negotiation/7  refers  to  Judge 
Campbell  as  one  "  whose  sincerity  and  straightfor 
wardness  cannot  be  questioned.7' 2 

General  Samuel  W.  Crawford,  who  examined  the 
letters  and  documents  in  the  possession  of  Judge 
Campbell  relating  to  the  negotiation,  writes :  "  Thus 
ended  the  voluntary  interposition  of  an  official  of 
high  position,  and  whose  sole  object  was  to  prevent 
a  collision  which  would  have  inaugurated  war  be 
tween  the  States.  Like  many  of  his  countrymen  he 
believed  that,  in  the  preservation  of  peace,  a  settle 
ment  would  be  ultimately  reached  that  would  satisfy 
the  best  and  most  patriotic  minds  and  to  this  end  he 
devoted  his  best  energies.  He  opposed  the  secession 
of  his  State  and  condemned  all  that  resembled  a 
conspiracy  against  the  union  of  the  States."  3 

At  probably  more  than  usual  length  and  with 
wearying  detail,  the  history  of  this  incident  in  Judge 
Campbell's  life  is  given,  not  for  the  purpose  of  in 
viting  or  entering  into  the  controversy  in  which  it 
was  charged  that  Lincoln  and  Seward  were  guilty 
of  "  equivocation  and  insincerity  with  Judge  Camp 
bell,"  or  of  suggesting  that  by  their  conduct  they 
" inaugurated  the  civil  war,"  but  that  the  "facts  of 

1  New  York  Evening  Post,  May  17,  1861. 

2  Rhodes:  History  of  the  United  States,  in,  338. 

8  Crawford,  S.  W.:  Genesis  of  the  Civil  War,  341. 


EFFORTS  TO  AVERT  CIVIL  WAR    143 

history"  may  be  made  known  and  Judge  Campbell's 
course  understood.  There  was  ample  room  for  the 
conclusion  drawn  by  Judge  Campbell  that  he  had 
not  been  dealt  with  fairly  and  frankly,  and  this 
appears  to  have  been  Mr.  Stanton's  opinion.  When 
attacked  by  Northern  papers,  he  was  entitled  to  a 
frank  statement  from  Seward.  Probably  Mr.  Rhodes 
has  reached  an  approximately  correct  conclusion. 
Referring  to  the  charge  made  by  Judge  Campbell, 
Jefferson  Davis,  and  Alexander  H.  Stephens,  that 
"the  equivocating  conduct  of  the  Administration " 
was  the  "proximate  cause"  of  the  commencement 
of  the  war  in  Charleston  Harbor,  he  says:  "If,  as 
these  gentlemen  more  or  less  distinctly  assume,  the 
President  consented  to  this  negotiation  and  knew  of 
the  assurances  which  Seward  gave,  his  course  cannot 
successfully  be  defended.  Nicolay  and  Hay  do  not 
tell  us  in  set  terms  how  far  he  was  privy  to  the  quasi- 
promises  of  his  secretary,  but  from  their  narrative  it 
is  a  reasonable  inference  that  he  knew  little  or  noth 
ing  about  them.  Secretary  Welles,  writing  in  1873, 
says  emphatically  that  the  President  did  not  know 
of  Seward's  assurance  that  Fort  Sumter  would  be 
evacuated,  and  never  gave  it  his  sanction.  Consider 
ing  Lincoln's  character  and  manner  of  action,  noth 
ing  but  the  most  positive  evidence  should  convince 
us  that  he  was  in  any  way  a  party  to  this  negotia 
tion,  and  of  this  there  is  none.  .  .  .  Justice  Camp 
bell,  believing  that  Seward  was  the  President  in 
fact,  and  trusting  him  implicitly,  was  the  only  suf 
ferer  on  the  part  of  the  South."  1  Mr.  Schouler  is  of 
1  Rhodes:  History  of  the  United  States,  in,  338,  340. 


144      JOHN  ARCHIBALD  CAMPBELL 

the  opinion  that  Seward  communicated  to  Lincoln 
his  conversations  with  Campbell  and  Nelson.1 

It  is  ungracious  to  differ  with  Mr.  Rhodes;  one 
cannot  quarrel  with  a  man  so  anxious  to  do  justice 
to  all  men  whether  in  agreement  with  them  or  not, 
but  it  is  difficult  to  adopt  his  conclusion  that  Mr. 
Seward  was  the  only  diplomat  in  the  Administration 
in  those  days.  The  letters  written  by  Stanton,  Holt, 
and  General  Dix  to  Buchanan,  during  the  months  of 
March  and  April,  1861,  tend  to  sustain  the  conclu 
sion  that  the  evacuation  of  Fort  Sumter  was  "  com 
mon  talk,"  and  are  interesting  in  the  light  of  Stan- 
ton's  subsequent  career. 2  Without  any  disposition 
to  draw  into  question  Mr.  Lincoln's  conduct  or 
motives,  there  is  evidence  from  a  very  respectable 
source  that,  at  the  time  Mr.  Seward  was  having  con 
versations  with  Judge  Campbell  and  Judge  Nelson 
regarding  the  evacuation  of  Fort  Sumter,  the  Presi 
dent  was  also  having  negotiations  with  Union  men 
from  the  South.  John  Hay  recorded  in  his  diary, 
October  22,  1861,  a  conversation  with  Mr.  Lincoln, 
in  which  the  latter  said  that  "he  promised  a  com 
mittee  of  Southern  pseudo-Unionists,  coming  to  him 
before  inauguration,  to  evacuate  Sumter  if  they 
would  break  up  their  Convention  without  any  row 
or  nonsense.  They  demurred.  Subsequently,  he  re 
newed  the  proposition  to  Summers,  but  without  re 
sult.  The  President  was  most  anxious  to  prevent 
bloodshed."  Horace  White  says:  "There  is  reason  to 
believe  that  Seward  had  previously  prevailed  upon 

1  Schouler,  James:  History  of  the  United  States,  vi,  31,  note. 
8  Curtis :  Life  of  James  Buchanan,  n,  chap,  xxvii. 


EFFORTS  TO  AVERT  CIVIL  WAR    145 

the  President  to  agree  to  surrender  Fort  Sumter  as 
a  means  of  preventing  the  secession  of  Virginia."  1 
Mr.  White  suggests  that  "  probably  the  entry  in 
Hay's  diary  had  been  forgotten  when  the  history 
was  written  twenty-five  years  after."  2 

In  his  "Political  History  of  Secession  to  the  Be 
ginning  of  Civil  War"  (page  586)  Mr.  Daniel  Wait 
Howe  ascribes  to  Judge  Campbell  a  letter  of  March 
6,  1861,  written  to  Robert  Toombs,  the  language  of 
which  he  quotes.  It  is  impossible  to  reconcile  the 
authorship  of  this  letter  with  Judge  Campbell's 
"  Facts  of  History."  Mr.  Howe's  attention  being 
called  to  the  evident  mistake  promptly  wrote  that 
upon  investigation  he  found  that  "the  author  of 
that  letter  was  Martin  J.  Crawford,  one  of  the  Con 
federate  Commissioners,  and  not  Justice  Campbell"; 
that  he  regretted  the  mistake  "because  it  does  in 
justice  to  the  memory  of  Justice  Campbell."  He  at 
tributes  the  mistake  to  an  error  made  in  "copying 
extracts  from  books  and  documents."  The  letter,  as 
quoted  by  Mr.  Howe,  is  printed  in  Frederic  Ban 
croft's  "Life  of  William  H.  Seward"  (vol.  n,  page 
118),  and  correctly  states  that  it  was  written  by 
Crawford  to  Toombs  March  6,  1861,  nine  days  be 
fore  Judge  Campbell  met  Judge  Nelson  and,  with 
him,  called  upon  Mr.  Seward.3 

1  White,  Horace:  Life  of  Lyman  Trumbull,  150.         a  Ibid.,  162. 

8  This  correction  is  made  at  the  request  and  by  authority  of  Mr. 
Howe.  The  "mistake"  resulted  in  an  interesting  correspondence 
and  "a  presentation  copy"  of  Mr.  Howe's  very  interesting  and  in 
forming  book.  While,  as  suggested  by  him,  in  some  aspects  our 
point  of  view  differs,  the  spirit  shown  by  Mr.  Howe  is  that  of  a  fair- 
minded,  conscientious,  and  careful  student  and  writer.  It  gives  me 
pleasure  to  make  this  acknowledgment. 


146       JOHN  ARCHIBALD  CAMPBELL 

John  Minor  Botts  gives  an  account  of  a  conversa 
tion  on  this  subject  which,  he  says,  he  had  with  Mr. 
Lincoln  on  Sunday,  April  7,  1861.  He  states  that  on 
April  5,  1861,  Mr.  Lincoln  had  said  to  John  B.  Bald 
win,  a  member  of  the  Virginia  Convention,  then  in 
session,  if  the  Convention  would  adjourn  without 
passing  any  ordinance  of  secession,  he  would  tele 
graph  to  New  York,  "  Arrest  the  sailing  of  the 
fleet,"  and  take  the  responsibility  of  evacuating 
Fort  Sumter.  In  1866  Baldwin  testified  before  the 
Reconstruction  Committee  that  he  had  an  inter 
view  with  the  President,  at  the  date  mentioned, 
but  denied  that  Lincoln  offered  to  evacuate  Fort 
Sumter  if  the  Virginia  Convention  would  adjourn 
sine  die. 

It  is  worthy  of  note  that  on  April  7,  the  day  on 
which  Botts  says  he  had  the  conversation  with 
Lincoln,  Seward  wrote  Judge  Campbell  the  note 
assuring  him  that  faith  was  kept  as  to  Sumter.  In 
consequence  of  Baldwin's  testimony  before  the 
Committee  on  Reconstruction  in  regard  to  this  in 
cident,  Botts  gathered  the  evidence  to  sustain  his 
statement. 1 

An  interesting  side-light  is  thrown  on  this  inci 
dent,  about  which  so  many  contradictory  state 
ments  have  been  published  and  such  strenuous 
efforts  made  to  misrepresent  Judge  Campbell,  by 
reference  to  a  paper  entitled  "  Rudolph  Schleiden 
and  the  Visit  to  Richmond,  April  25,  1861,"  read  by 
Professor  Ralph  H.  Lutz  before  the  Pacific  Coast 

1  Botts,  J.  M.:  The  Great  Rebellion,  194;  Report  on  Reconstruc 
tion,  1866. 


EFFORTS  TO  AVERT  CIVIL  WAR    147 

Branch  of  the  American  Historical  Association,  No 
vember  27,  1915.  Schleiden  was,  during  the  spring  of 
1861,  German  Minister  Resident  at  Washington.  In 
confidential  dispatches  to  the  Committee  of  Foreign 
Affairs  of  Bremen,  he  reported  that  Lincoln  had  said 
to  the  Peace  Commissioners  in  Virginia,  when  asked 
to  remove  the  troops  from  Fort  Sumter,  "  Why  not? 
If  you  will  guarantee  to  me  the  State  of  Virginia, 
I  will  remove  the  troops.  A  State  for  a  Fort  is 
not  bad  business."  This  entire  article  affords  in 
teresting  light  on  the  situation,  both  in  Washing 
ton  and  in  Richmond,  during  the  month  of  April, 
1861. ! 

That  Judge  Campbell  had  the  same  object  in  view 
as  had  Lincoln  and  Seward,  to  prevent  bloodshed 
and  avert  civil  war,  is  manifest.  It  is  difficult  to  see 
why  his  conduct  should  not  be  ascribed  to  the  same 
motive  and  judged  by  the  same  standard.  To  do  so 
relieves  him  of  much  of  the  criticism  indulged  in  by 
Nicolay  and  Hay  in  their  "  History."  The  incident 
affords  an  illustration  of  the  wisdom  and  justice  of 
Gladstone's  rule  of  life,  that  "It  is  always  best  to 
take  the  charitable  view,  especially  in  politics,"  or 
to  accept  Cobden's  experience  which  led  him  to  say, 
"The  older  I  get  the  more  do  I  believe  in  men's  sin 
cerity." 

To  have  dealt  with  Judge  Campbell  in  this  spirit 
would  have  been  justice  to  him,  without  in  any 

1  American  Historical  Association  Journal,  1915,  p.  209.  Thomas 
L.  Clingman,  Senator  from  North  Carolina  (1861),  tells  of  an  inter 
esting  conversation  (1866)  with  a  member  of  Lincoln's  Cabinet  re 
garding  the  attitude  of  the  Administration  as  to  the  evacuation  of 
Fort  Sumter.  (Speeches  and  Writings,  564.) 


148       JOHN  ARCHIBALD  CAMPBELL 

degree  lowering  the  estimate  in  which  the  authors 
wish  their  readers  to  hold  their  hero.  Lincoln's  place 
in  the  estimation  of  men  does  not  need  that  those 
with  whom  he  was  associated  and  from  whom  he 
differed  should  be  judged  harshly  and  unjustly. 


CHAPTER  VI 

SERVICES  TO  THE  CONFEDERACY  AND  PEACE 
NEGOTIATIONS 

FAILING  in  his  efforts  to  stay  secession  and  avert 
civil  war,  and  feeling  that  he  had  been  placed  in  a 
false  position  by  what  he  regarded  as  Seward's  de 
ception,  Judge  Campbell  tendered  his  resignation  to 
the  President.  Explaining  his  reasons  for  not  resign 
ing  immediately  upon  the  secession  of  Alabama,  he 
wrote  H.  Ballentine,  of  Mobile,  May  22,  1861:  "  Af 
ter  the  adjournment  of  the  term  of  the  Court  there 
was  judicial  business  of  importance,  but  of  subordi 
nate  importance,  to  be  disposed  of;  there  were  ob 
jections  to  my  resignation,  on  principle,  from  the 
members  of  the  Supreme  Court  and  from  men  whose 
character  and  counsel  merited  respect  and  deference 
—  statesmen  from  Virginia,  Kentucky,  Maryland, 
Tennessee,  and  North  Carolina.  And  there  was  every 
reason  to  suppose  that  my  holding  the  office  might 
enable  me  to  contribute  something  toward  securing 
the  great  blessing  of  peace  and  averting  from  the 
country  the  direst  of  evils  —  civil  war." 

On  April  29,  1861,  he  addressed  the  following  let 
ter  to  Chief  Justice  Taney : 

MY  DEAR  SIR: 

Some  days  ago  I  sent  through  the  mail  to  the 
President  a  notice  of  my  resignation  of  the  office 
of  Associate  Justice  of  the  Supreme  Court  of  the 


150      JOHN  ARCHIBALD  CAMPBELL 

United  States.  In  taking  leave  of  the  Court,  I  should 
do  injustice  to  my  own  feelings  if  I  were  not  to  ex 
press  to  you  the  profound  impression  that  your  emi 
nent  qualities  as  a  magistrate  and  jurist  have  made 
upon  me.  I  shall  never  forget  the  uprightness,  fidel 
ity,  learning,  thought,  and  labor  that  have  been 
brought  by  you  to  the  consideration  of  the  judg 
ments  of  the  Court,  or  the  urbanity,  gentleness, 
kindness,  and  tolerance  that  have  distinguished 
your  intercourse  with  the  members  of  the  Court  and 
Bar.  From  your  hands  I  have  received  all  that  I 
could  have  desired  and,  in  leaving  the  Court,  I  carry 
with  me  feelings  of  mingled  reverence,  affection,  and 
gratitude. 

In  the  prayer  that  the  remainder  of  your  days  may 
be  happy  and  their  end  peace, 
Your  friend 

JOHN  A.  CAMPBELL 
MR.  CH.  JUSTICE  TANEY 

The  "National  Intelligencer"  thus  refers  to 
Judge  Campbell's  resignation:  "We  regret  to  an 
nounce  to  our  readers  that  the  Honorable  John  A. 
Campbell  has  resigned  his  appointment  as  Associate 
Justice  on  the  Bench  of  the  Supreme  Court  of  the 
United  States.  That  tribunal  loses  in  him  a  learned 
jurist  and  a  faithful  Judge,  who,  during  the  entire 
period  of  his  official  service,  has  illustrated  the  quali 
ties  which  most  adorn  the  exalted  position  he  was 
called  to  fill,  and  who,  in  his  retirement,  will  carry 
with  him  the  admiration  of  his  countrymen  and,  not 
least,  that  of  those  who  may  regret  the  sense  of  duty 


SERVICES  TO  THE  CONFEDERACY    151 

prescribed  to  himself  in  tendering  his  resignation 
because,  as  is  supposed,  of  pending  political  compli 
cations." 

Mr.  Carson  says  of  Judge  Campbell's  resignation : 
"This  great  Judge  was  commissioned  upon  the  22d 
day  of  March,  1853.  In  less  than  eight  years  he  had 
resigned.  It  will  never  cease  to  be  a  matter  of  pro 
fessional  regret  that  two  such  Judges  as  Campbell 
and  Curtis,  having  once  attained  such  exalted  posi 
tions,  and  having  displayed  such  surpassing  judicial 
powers,  should  have  felt  themselves  called  on  to  re 
tire  from  membership  in  a  tribunal  which  they  had 
greatly  strengthened  and  adorned.  ...  It  takes  time 
to  create  a  great  judicial  reputation  and  the  fruits 
of  judicial  wisdom  ripen  slowly.  Had  Marshall  or 
Taney  been  stricken  down  in  the  midst  of  their 
career,  they  would,  as  Chief  Justices,  be  as  little 
known  to  the  country  as  Ellsworth  and  Chase.  Or 
had  Washington  and  Story  resigned  in  middle  life, 
their  names  would  be  as  little  remembered  as  those 
of  B arbour  and  Woodbury."  J 

The  secession  of  the  Southern  States  brought 
radical  changes  in  the  lives  and  careers  of  many 
Southern  men,  some  withdrawing  from  seats  in  the 
National  Congress;  others,  impelled  by  a  sense  of 
duty  to  their  political  allegiance,  resigning  positions 
in  the  Army  and  Navy,  renouncing  well-founded 
prospects  of  promotion  and  lifelong  service,  or  hon 
orable  retirement  with  an  assured  source  of  support 
for  themselves  and  their  families.  None  was  called 
upon  to  make  a  greater  sacrifice,  and  few  one  so 

1  Carson,  H.  L. :  History  of  the  Supreme  Court,  350. 


152      JOHN  ARCHIBALD  CAMPBELL 

great,  as  Judge  Campbell.  He  held,  by  a  life  tenure, 
one  of  the  most  honorable  public  positions  in  the 
service  of  the  Government,  the  duties  of  which 
called  into  daily  exercise  those  mental  and  moral 
qualities  which,  for  more  than  thirty  years,  he  had 
cultivated  by  study  and  practice,  with  constantly 
enlarging  opportunity  and  capacity  for  usefulness; 
associations  in  all  respects  congenial,  with  prospect 
of  promotion  in  the  membership  of  the  Court.  All  of 
these  he  renounced  and  returned  to  private  life  un 
der  conditions  most  painful  and  embarrassing.  Dif 
ferent  from  those  who  looked  forward  to  taking 
part  in  the  establishment  of  a  new  Republic  with, 
as  they  thought,  a  successful  career  in  the  family  of 
nations,  he  was  strongly  attached  to  the  Union  and 
regarded  dissolution  as  unwise  and  without  justifi 
cation.  Upon  his  resignation  he  returned  to  Mobile, 
where  he  found  that  a  very  strong  feeling  of  hostility 
to  him  prevailed  among  the  secession  leaders  by  rea 
son  of  his  publicly  avowed  opposition  to  their  coun 
sel  and  the  course  pursued  by  them.  After  settling 
his  private  business  in  Mobile,  he  formed  a  part 
nership  for  the  practice  of  his  profession  in  New 
Orleans. 

The  questions  occur,  Why,  with  his  opinion  in  re 
gard  to  the  secession  of  Alabama  and  the  organ 
ization  of  a  Southern  Confederacy,  did  he  resign 
and  return  and  give  his  adherence  and  support  to 
the  Confederacy?  Was  he,  in  pursuing  this  course, 
loyal  to  his  allegiance  and  his  duty  to  the  coun 
try?  These  questions  are  pertinent  and  call  for  an 
answer.  Whether  he  correctly  construed  the  Con- 


SERVICES  TO  THE  CONFEDERACY    153 

stitution,  in  holding  to  the  opinion  that  the  State  of 
Alabama,  and  those  other  States  which  pursued  the 
same  course,  exercised  a  reserved  political  right  and, 
by  the  ordinance  of  secession,  separated  themselves 
from  the  Union  and  became  independent  sovereign 
States,  is  a  question  in  regard  to  which  patriotic, 
loyal  men  had,  at  all  times,  honestly  differed.  Those 
Southern  men  who  believed  that  secession  was  not 
only  the  right,  but  in  the  condition  by  which  they 
were  confronted  the  duty,  of  the  Southern  States 
found  no  difficulty  in  giving  their  active  support 
to  the  Southern  Confederacy.  The  question  which 
Southern  men  of  Judge  Campbell's  school  of  thought 
and  political  faith  and  views  as  to  the  wisdom  of  se 
cession  were  called  upon  to  answer,  was  open  to  de 
bate.  In  fixing  the  place  of  these  men  in  the  estima 
tion  of  the  present  and  future  generations,  it  may  be 
appropriately  asked,  Why,  if  they  thought  no  valid 
or  sufficient  cause  existed  justifying  secession,  did 
they  acquiesce  in  the  action  of  the  States  and  con 
tinue  to  give  their  allegiance  to  them  after  they  had 
adopted  ordinances  of  secession?  It  may  be  frankly 
conceded  that,  in  those  days  of  uncertainty  and 
doubt,  there  was  an  absence  of  uniformity  and  con 
sistency  in  the  course  pursued  by  men  of  undoubted 
patriotism  and  moral  and  political  integrity.  Many 
men  in  the  North,  who  denied  the  right  of  a  State  to 
secede  from  the  Union,  insisted  that  there  was  no 
power  in  the  National  Government  to  use  forcible 
means  to  prevent  it  from  doing  so.  Others,  without 
undertaking  to  decide  the  question  of  the  right  to 
secede,  held  that  for  the  United  States  to  hold  a 


154      JOHN  ARCHIBALD  CAMPBELL 

State  to  its  allegiance  by  coercion  would  be  nothing 
short  of  subjugation  and  destructive  of  the  purpose 
for  which  the  Union  was  formed.  So,  in  the  South, 
many  denied  the  right  of  secession,  but  found  justifi 
cation  in  the  exercise  of  the  right  existing  in  all  po 
litical  communities  to  make  a  revolution  and  sever 
their  political  relations.  This  doctrine  they  found 
taught,  and  this  right  successfully  asserted,  by  the 
colonists  of  1776  from  whom  they  were  descended. 

Judge  Campbell,  with  many  others,  probably  a 
majority  of  Southern  men,  held  to  the  opinion  that 
there  existed  in  each  American  State  the  reserved, 
inalienable  right  to  sever  its  relation  to  the  United 
States  whenever  its  safety  and  welfare  demanded, 
and  of  this  the  people  of  each  State  were  the  final 
judges.  As  we  have  seen,  this  opinion,  formed  upon 
long  and  diligent  study  of  the  Constitution  and  his 
tory  of  the  country,  he  had  held  and  publicly  ex 
pressed  long  before  the  occasion  for  its  exercise 
arose.  He  logically  concluded  that  when  the  State 
of  Alabama  exercised  this  right,  as  one  of  her  citizens 
he  owed  allegiance  to  her  and,  as  he  expressed  it, 
must  follow  the  fortunes  of  her  people.  The  basic 
principle  upon  which  this  conclusion  depended  was 
that  he  was  a  citizen  of  the  State  and  that  his  ulti 
mate  allegiance  was  due  to  her. 

In  his  argument  before  the  Supreme  Court  in  the 
Slaughter-House  Cases,  after  the  restoration  of  the 
Union  and  the  adoption  of  the  Fourteenth  Amend 
ment,  he  expressed  his  views,  saying:  "It  had  been 
maintained  from  the  origin  of  the  Constitution,  by 
men  in  every  part  of  the  United  States  and  of  the 


SERVICES  TO  THE  CONFEDERACY     155 

highest  order  of  ability,  and  who  exerted  great  influ 
ence,  that  the  State  was  the  highest  political  organi 
zation  in  the  United  States,  and  through  the  consent 
of  the  separate  States  the  Union  had  been  formed 
for  limited  purposes,  and  that  there  was  no  social 
union  except  by  and  through  the  consent  of  the 
separate  States,  and  that  in  extreme  cases  the  sev 
eral  States  might  cancel  the  obligations  to  the 
Union  and  reclaim  the  allegiance  and  fidelity  of  its 
members.  .  .  .  That  a  confederation  did  not  destroy 
sovereignty  or  independence.  That  she  bound  her 
self  only  by  the  ratification  and  reserved  all  the  pow 
ers  not  therein  given  to  the  General  Government. 
.  .  .  There  is  no  definition  of  what  constitutes  a  citi 
zen,  nor  how  a  native  becomes  a  citizen.  .  .  .  The 
Fourteenth  Constitutional  Amendment  was  desig 
nated  to  enlarge  and  to  determine  the  relations  of  citi 
zens  and  to  place  their  obligations  beyond  dispute."  1 
It  followed  with  inexorable  logic,  from  this  propo 
sition,  that  when  the  State  of  Alabama  adopted  the 
ordinance  of  secession,  Judge  Campbell  must  either 
sever  his  political  relation  to  the  State  and  become  a 
citizen  of  another  which  had  not  adopted  such  an 
ordinance,  or  resign  his  office;  hence  he  says:  " After 
using  every  effort  in  my  power  to  secure  peace  and 
prevent  war,  when  it  became  evident  that  I  could  do 
no  more,  I  resigned,  as  a  consequence  of  the  seces 
sion  of  the  State  of  Alabama."  His  associate,  Judge 
Wayne,  a  citizen  of  Georgia,  holding  the  view  that 
her  ordinance  of  secession  was  unauthorized  and 
void,  working  no  change  in  the  relation  of  the  State 

1  Brief  in  Slaughter-House  Cases. 


156      JOHN  ARCHIBALD  CAMPBELL 

to  the  Union,  remained  on  the  Bench.  Both  acted  in 
accordance  with,  and  followed,  the  logical  conclu 
sion  to  which  their  opinions  led. 

Men  of  this  generation  find  it  difficult  to  under 
stand  and  appreciate  the  trials  of  mind  which  those 
of  the  pre-civil  war  period  underwent.  During  the 
war  and  for  many  years  afterwards,  it  was  the  fash 
ion  to  refer  to  those  who  followed  their  States  as 
" traitors"  and  to  their  conduct  as  " treason."  These 
terms,  incorporated  into  the  language  of  legislation, 
judicial  decisions,  and  the  literature  of  those  days, 
crystallized  this  conception  of  the  conduct  of  South 
ern  men.  To  those  to  whom  these  men  and  their  mo 
tives  were  known  and  to  whom  the  political  history 
of  this  country  is  familiar,  it  has  been  a  source  of  as 
tonishment  that  such  terms  should  have  ever  been 
applied  to  them  or  their  conduct,  and  it  is  gratifying 
to  note  that,  with  the  passing  of  the  passions  and  the 
coming  of  a  clearer  vision,  with  conciliation  and 
growth  of  National  unity,  many  men  of  Northern 
birth  and  sympathies  are  inclined  to  give  expression 
to  more  generous  and,  therefore,  more  just  views. 
Charles  Francis  Adams  clearly  states  the  attitude  of 
men  who  had  been  educated  in  the  school  of  thought 
to  which  Judge  Campbell  belonged.  He  says  they 
held  that  "  ultimate  allegiance  was  due  to  the  State 
which  defined  and  conferred  citizenship,  not  to  the 
central  organization  which  accepted  as  citizens 
whomsoever  a  State  pronounced  to  be  such."  1  The 

1  Adams,  Charles  Francis:  Trans-Atlantic  Historical  Solidarity, 
46;  Lee's  Centennial;  Bradford,  Gamaliel:  Lee,  the  American,  25; 
Munford:  Virginia's  Attitude  Toward  Slavery  and  Secession,  290. 


SERVICES  TO  THE  CONFEDERACY    157 

question  has  been  so  thoroughly  "threshed  out" 
that  it  would  seem  impossible  for  any  new  light  to  be 
thrown  upon  it.  George  Bancroft  happily  expressed 
the  sentiment  of  the  men  who  outlived  the  passions 
of  the  Civil  War.  In  1874,  Dr.  S.  Weir  Mitchell, 
Senator  Bayard,  Senator  Sherman,  General  Sher 
man,  and  several  other  gentlemen  were  dining  with 
Mr.  Bancroft,  when  General  Sherman,  referring  to 
some  incidents  of  the  war,  spoke  of  the  Southerners 
as  "rebels,  who  may  have  also  confederated," 
whereupon  Mr.  Bancroft  said:  "Fill  your  glasses, 
gentlemen;  let  us  drink  to  the  memory  of  dead  Con 
federates,  who  are  no  longer  Rebels."  Turning  to 
Dr.  Mitchell,  he  said:  "After  all,  Doctor,  it  was  a 
civil  war  and  it  is  time  to  begin  to  be  charitable  in 
the  use  of  labels."  1 

Without  regard  to  the  result  of  the  war,  measured 
by  the  standard  of  loyal  devotion  to  an  intellectual 
and  moral  conviction  of  political  duty  Judge  Camp 
bell  is  justly  entitled  to  the  judgment  pronounced  by 
George  Ticknor  Curtis  upon  his  conduct.  He  said: 
"This  is  an  appropriate  occasion  to  speak  of  the 
quality  of  that  patriotism  which  led  pure  and  hon 
orable  men,  like  Judge  Campbell,  and  hosts  of  oth 
ers  in  civil  and  military  life,  to  devote  their  energies 
and  to  stake  their  lives,  after  the  great  issue  was 
made  up,  in  an  effort  to  establish  a  country  for  them 
selves  and  their  posterity.  Patriotism  then  became, 
to  such  men,  a  duty  to  the  land  of  their  birth  and 
their  affections.  In  the  moral  estimate  which  history 
should  form  of  their  conduct,  it  should  be  remem- 
1  Howe,  M.  A.  de  W. :  Life  and  Letters  of  George  Bancroft,  n,  280. 


158      JOHN  ARCHIBALD  CAMPBELL 

bered  that  events,  sweeping  on  with  irresistible 
force,  had  compelled  such  men  to  make  a  choice  be 
tween  adhesion  to  the  Federal  Government  and  ad 
hesion  to  the  separate  and  independent  government 
which  the  Southern  people  wished  to  make."  1 

Judge  Campbell  took  no  part  in  the  war  nor  held 
any  position  under  the  Confederate  Government 
until,  during  the  month  of  October,  1862,  George  W. 
Randolph,  Secretary  of  War,  applied  to  him  to 
accept  the  position  of  Assistant  Secretary  of  War, 
stating  that  there  was  in  the  War  Department  a 
large  accumulation  of  business  of  a  civil  nature  re 
quiring  the  attention  of  an  experienced  lawyer.  It  is 
probable  that,  in  addition  to  Judge  Campbell's  repu 
tation  as  a  lawyer,  the  Secretary  was  influenced  in 
calling  him  to  his  aid  by  the  fact  that  he  had  re 
ceived  training  at  the  United  States  Military  Acad 
emy  at  West  Point.  Although  Mr.  Randolph  recog 
nized  that  the  position  was  not  in  keeping  with  the 
character  and  qualifications  of  Judge  Campbell,  he 
urged  his  acceptance  because  of  the  aid  which  he 
was  capable  of  rendering. 

Judge  Campbell  says:  "This  application  was 
without  any  agency  on  my  part.  .  .  .  The  country 
was  then  suffering  all  the  calamities  of  invasion. 
Much  of  the  business  and  the  feelings  and  sensibili 
ties  of  the  country  were  concentered  in  the  War 
Office,  for  conscription  had  placed  the  whole  mili 
tary  population  under  it,  and  impressments  were 
doing  the  same  in  regard  to  property.  The  courts 
were  debilitated.  Military  rule  dominant.  The  office 

1  Memorial  Addresses  —  Justice  Campbell,  23. 


SERVICES  TO  THE  CONFEDERACY    159 

of  Assistant  Secretary  did  not  give  to  me  any  con 
trol  over  military  operations  or  organizations.  It  did 
not  charge  me  with  the  subsistence,  movement,  or 
employment  of  troops;  or  with  the  conduct  of  the 
war.  It  gave  me  no  control,  custody,  oversight,  care, 
or  responsibility  in  regard  to  prisoners  of  war.  I  had 
no  charge  of  regular  or  irregular  enterprises  of  war, 
or  of  any  secret  service  or  the  employment  of  money. 
I  decided  a  vast  number  of  cases  for  the  exemption 
of  citizens  from  military  service.  I  made  details  in 
cases  of  justice,  equity,  and  necessity,  and  granted 
exemptions  on  that  account,  on  appeal  from  the  sub 
ordinate  officers.  I  revised  a  vast  number  of  cases  of 
arrests  by  subordinates.  I  superintended  the  current 
correspondence  of  the  office.  I  made  a  great  variety 
of  orders  and  decisions  in  particular  cases.  The  office 
was  one  that  imposed  irksome,  uncongenial,  and,  in 
most  cases,  trivial  labor.  But  I  do  not  doubt  that  I 
alleviated  much  distress,  mitigated  the  severities  of 
the  war  to  some  persons,  enforced  justice  and  order 
in  many  instances,  and  won  the  respect  of  those  hav 
ing  connection  with  the  office,  by  a  firm,  impartial, 
and  benevolent  administration.  I  applied  to  resign 
in  1863.  I  resigned  in  1865.  At  each  time  I  was  as 
sured  that  my  services  could  not  be  dispensed  with, 
and  at  the  last  time  nearly  all  the  Congressmen 
made  an  appeal  to  me  to  remain.  I  have  no  belief 
that  I  made  any  impression  upon  the  great  events  of 
the  war;  or  any  upon  the  policy  of  the  Government. 
All  I  mean  to  say  is  that,  under  the  difficult  circum 
stances  of  the  time,  in  a  subordinate  and  compara 
tively  unimportant  office,  I  found  the  means  to  do  a 


160      JOHN  ARCHIBALD  CAMPBELL 

great  deal  of  good.  I  diminished  the  weight  of  the 
heaviest  calamity  that  ever  befell  a  country,  to 
many;  I  have  no  reason  to  believe  that  I  aggravated 
them  to  any  one  person.  This  is  my  consolation  for 
loss  of  exalted  position,  competent  fortune,  and  my 
present  captivity.  One  motive  for  accepting  this 
office  was  that  I  might  have  some  influence  in  pro 
moting  peace.  A  position  of  isolation  is  one  without 
influence  or  usefulness.  The  legislative  and  executive 
action  of  the  United  States  in  1862  undoubtedly 
prolonged  the  war  and  made  peace  more  difficult. 
The  war  seemed  to  change  its  character  and  objects 
during  that  year,  and  to  become  more  exasperated 
and  intense.  I  was  in  favor  of  peace,  if  one  could  be 
made,  upon  the  basis  of  a  reunion  of  the  States  at 
any  time  after  my  resignation.  The  abrupt  and  forci 
ble  emancipation  of  slaves  made  a  new  condition 
which  the  people  of  the  Southern  States  regarded 
with  apprehension  and  abhorrence.  After  that  legis 
lation  it  became  apparent  that  peace  was  to  result 
only  from  the  exhaustion  of  the  Confederate  States. 
In  the  fall  of  1864  I  brought  the  matter  to  the  notice 
of  the  Secretary  of  War.  I  exposed  the  situation  of 
the  Treasury  and  the  error  in  the  report  of  its  chief. 
I  brought  to  the  notice  of  members  of  Congress  the 
condition  of  things  and  urged  upon  them  to  take 
measures  for  negotiation.  In  December,  1864,  I  ad 
dressed  Mr.  Justice  Nelson  an  elaborate  letter  in 
viting  a  conference  with  him,  and  if  possible  Messrs. 
Ewing,  of  Ohio,  Curtis,  of  Boston,  and  Secretary 
Stanton,  to  ascertain  whether  measures  for  peace 
could  not  be  set  on  foot.  Two  copies  of  this  letter, 


SERVICES  TO  THE  CONFEDERACY    161 

with  the  concurrence  and  sanction  of  Messrs. 
Hunter  and  Seddon,  were  sent  in  December,  but 
no  answer  was  received." 

Like  many  other  Southern  men,  Judge  Campbell 
became  convinced,  during  the  winter  of  1864,  that 
the  military  and  financial  resources  of  the  Confeder 
acy  were  inadequate  to  a  continued  and  successful 
contest.  In  order  to  forestall  the  consequences  of 
what  he  foresaw  would  be  certain  and  disastrous  de 
feat,  he  thought  that  some  effort  should  be  made  to 
secure  peace  on  the  best  terms  which  could  be  ob 
tained  by  negotiation.  By  reason  of  his  position,  as 
Assistant  Secretary  of  War,  he  was  enabled  to  know 
of  the  constant  depletion  of  the  resources  of  the  Con 
federacy.  His  relations  with  Judge  Nelson,  while  on 
the  Bench,  were  very  intimate,  and  he  knew  of  the 
latter's  conservatism  and  patriotism.  Accordingly, 
on  December  1,  1864,  he  addressed  to  him  the  fol 
lowing  letter: 

MY  DEAR  SIR  : 

It  has  more  than  once  occurred  to  me,  since  my 
intercourse  with  you  was  suspended  by  the  existing 
war,  to  address  you  with  a  purpose  of  ascertaining 
whether  anything  could  be  effected  for  the  ameliora 
tion  of  the  condition  which  it  has  occasioned.  There 
were  practical  difficulties  that  were  not  easily  to  be 
overcome.  I  had  no  assurance  that  any  good  would 
follow  from  it.  It  might  expose  you,  as  well  as  my 
self,  to  misconstruction ;  and  events  seemed  to  be  so 
little  under  the  control  of  any  private  and  individual 
will  or  action  that  a  submission  to  them  was  all 


162      JOHN  ARCHIBALD  CAMPBELL 

which  was  apparently  left  for  any  one  having  no 
particular  control.  An  intelligent  and  reverend 
friend  who  lately  came  through  the  United  States, 
passing  by  the  headquarters  of  two  of  their  armies, 
informs  me  that  one  of  then-  commanders  expressed 
to  him  the  opinion  that  good  might  follow  from  a 
frank  and  candid  interchange  of  opinions  and  in 
formation  between  citizens  of  the  different  sections 
and  that,  so  far  from  opposing  obstructions,  he 
would  grant  facilities  for  that  kind  of  intercourse. 
This  observation  was  a  general  one,  and  of  course 
had  no  relation  to  you  or  to  myself.  It  was  repeated 
to  me  as  seriously,  sincerely  made,  and  one  upon 
which  some  notice  or  action  might  be  taken.  It  has 
had  the  influence  to  induce  me  to  address  you  this 
letter.  My  opinions  and  feelings  as  to  the  manner 
proper  to  compose  the  existing  difficulties  have  un 
dergone  no  change  since  the  day  we  parted  in  Wash 
ington  in  1861.  My  conviction  is  firm  and  abiding, 
greatly  fortified  by  what  I  know,  that  had  the  coun 
sels  which  you  gave  on  that  day  been  followed,  in 
the  fullness  of  their  spirit,  and  even  to  their  letter,  the 
country  would  have  escaped  the  heaviest  calamities 
that  have  since  befallen  it.  I  believe  now  that  an 
honorable  peace  will  relieve  the  country  from  evils, 
possibly  more  permanent  and  more  aggravated  than 
those  which  have  been  suffered.  Nor  have  I,  at  any 
time,  hesitated  to  believe  that  wise,  moderate,  mag 
nanimous  counsels  might  result  in  an  honorable 
peace.  I  can  say  to  you  now,  what  I  expressed  then, 
that  the  consequences  of  such  a  peace  I  was  ready  to 
accept.  I  believe  that  from  it  all  that  a  good  or  wise 


SERVICES  TO  THE  CONFEDERACY    163 

man  ought  to  desire  would  surely,  and  in  good  time, 
appointed  by  Providence,  result.  If  you  suppose  that 
any  advancement  to  this  end  would  be  made  by  any 
communication  between  us,  or  between  myself  and 
others,  I  am  ready  to  hold  that  communication.  Mr. 
Ewing,  Judge  Curtis,  or  Mr.  Stanton,  have  occurred 
to  me  in  this  connection.  I  should  not  bear  any  offi 
cial  commission  nor  have  any  proposition  from  any 
public  authority.  My  object  is  simply  to  promote  an 
interchange  of  views  and  opinions  which  might  be 
productive  of  good  and  scarcely  do  harm.  I  would 
meet  you  in  the  U.  S.,  or  at  any  point  beyond  the 
Confederate  lines  which  might  be  designated.  For 
this  a  passport  would  be  necessary.  If  you  would 
prefer  it,  some  time  to  visit  Richmond,  upon  inform 
ing  me,  I  would  acquaint  you  whether  it  can  be  done. 
This  letter  is  not  marked  private  or  confidential.  I 
am  well  aware  of  the  fact  that  it  will  be  proper  to 
communicate  it  to  other  persons.  Of  course  it  is  not 
my  wish  that  any  undue  publicity  should  be  given  it. 
Very  respectfully  and  truly  yours 

J.  A.  CAMPBELL 

On  the  back  of  the  copy  of  this  letter,  retained  by 
Judge  Campbell,  he  made  the  following  endorse 
ment: 

My  letter  was  sent  to  Justice  Nelson  in  December, 
1864,  through  the  secret  signal  service  of  the  Con 
federate  States.  Two  copies  were  sent  and  both  re 
ceived  by  Judge  Nelson  in  the  winter  of  1864-5.  He 
exhibited  them  to  Mr.  Stanton,  who  said  that  it  was 
the  most  satisfactory  of  all  that  had  been  suggested. 


164      JOHN  ARCHIBALD  CAMPBELL 

He  stated  that  the  President  (Lincoln)  had  initiated 
a  scheme,  and  that  Mr.  Frank  Blair  was  charged 
with  it.  Mr.  Blair  was  in  Richmond  and  nothing 
could  be  done  till  that  plan  had  been  tried.  Mr.  Sec 
retary  Seddon  and  Mr.  Hunter  read  this  letter.  Mr. 
Davis  was  informed  of  it  by  Mr.  Seddon  and  con 
sented  that  this  attempt  should  be  made. 

It  will  be  observed  from  the  endorsement  on  the 
letter  that  Mr.  Blair  had  gone  to  Richmond  upon 
the  errand  which  preceded  the  Hampton  Roads  Con 
ference.  What  effect  the  letter  had  on  President 
Lincoln's  mind  in  connection  with  the  Conference  is, 
of  course,  conjectural.  The  history  of  the  events  pre 
ceding  the  Hampton  Roads  Conference  are  too  well 
known  to  require  repetition.  The  first  occasion  on 
which  Judge  Campbell's  name  is  mentioned  in  con 
nection  with  it  is  found  in  Blair's  account  of  his 
visit  to  President  Davis  in  Richmond.  He  says  that 
President  Davis  said  that  "he  would  appoint  a  per 
son  or  persons  who  could  be  implicitly  relied  on  by 
Mr.  Lincoln ;  that  he  had  on  a  former  occasion  indi 
cated  Judge  Campbell,  of  the  Supreme  Court,  as  a 
person  who  could  be  relied  on.  I  told  him  he  was  a 
person  in  whom  I  had  unbounded  confidence,  both 
as  regarded  talents  and  fidelity." 1 

The  " Memorandum"  of  the  Hampton  Roads 
Conference,  prepared  by  Judge  Campbell  at  the  re 
quest  of  Alexander  H.  Stephens  and  R.  M.  T.  Hun 
ter,  the  other  Commissioners,  contains  a  full  ac 
count  of  what  had  been  published  concerning  the 

1  Nicolay  and  Hay:  Abraham  Lincoln,  x,  106. 


SERVICES  TO  THE  CONFEDERACY    165 

conversations  between  Lincoln,  Seward,  and  the 
Confederate  Commissioners. 1  It  has  been  stated, 
and  frequently  repeated,  that  in  this  conversation 
Lincoln  said  to  the  Commissioners:  "Let  me  write 
Union  and  you  can  write  anything  else  you  want/' 
and  that  he  proposed,  if  the  Southern  States  would 
abolish  slavery,  disband  their  armies,  cease  resist 
ance  to  the  National  authority,  he  would  recom 
mend  to  Congress  that  the  owners  be  paid  $400,000,- 
000  as  compensation  for  their  slaves.  But  for  the 
insistency  with  which  this  statement  has  been  made 
and  repeated,  and  the  character  of  some  of  those 
who  have  given  it  then*  endorsements,  it  would 
seem  unnecessary  to  take  notice  of  it.  The  fact  that 
those  who  were  present  and  engaged  in  the  Confer 
ence  made  records,  more  or  less  official,  of  what 
passed  between  Lincoln  and  the  Commissioners,  in 
no  one  of  which  is  there  any  suggestion  of  such  lan 
guage,  renders  it  improbable  that  it  was  used.  No 
notes  were  made  of  the  conversation  at  the  time, 
and  there  was  an  agreement  that  no  record  was  to 
be  made.  Reports  were  made  by  Lincoln  and  by 
the  Confederate  Commissioners  to  their  respective 
Governments.2  It  is  unthinkable  that  either  or  all  of 
them  would  have  failed  to  mention  the  proposition 
if  it  had  been  made.  The  interest  attaching  to  the 
assertion  that  Lincoln  made  such  an  offer  consists 
in  the  reflection  upon  the  Confederate  Commission 
ers  for  omitting  any  reference  to  it.  Each  of  the 
Commissioners  desired  to  bring  about  a  settlement, 

1  Southern  Historical  Society  Papers,  in,  168. 

2  Richardson:  Messages  and  Papers  of  the  Presidents,  vi,  260. 


166      JOHN  ARCHIBALD  CAMPBELL 

and  was  willing  to  do  so  by  the  return  to  the  Union 
of  the  seceded  States;  each  recognized  that  peace 
could  not  be  secured  upon  any  other  terms;  each 
had  become  convinced  that  the  Confederacy  was 
not  able  successfully  to  maintain  the  struggle  for  its 
separate  existence;  and  each  well  knew  that  such 
propositions,  or  any  of  them,  would  strongly  appeal 
to  large  numbers  of  the  Southern  people.  Passing, 
therefore,  the  element  of  bad  faith  involved  in  the 
charge  that  they  suppressed  the  truth,  and  resorting 
to  the  argument  based  upon  the  reason  of  the  thing, 
it  is  impossible  to  believe  that  they  prevented  the 
consummation  of  the  very  purpose  which  they  so 
much  desired  by  suppressing  propositions  which 
would  almost  certainly  have  accomplished  it.  The 
charge  has  been  thoroughly  examined,  its  origin  and 
source,  with  its  repetitions,  and  the  evidence  care 
fully  collated  by  General  Julian  S.  Carr,  of  Durham, 
North  Carolina.1 

Some  years  after  the  war,  in  an  interview  Judge 
Campbell  gave  his  recollection  of  what  was  said 
upon  this  subject,  saying:  "In  a  conversation  with 
Mr.  Lincoln  I  asked  him  whether,  if  the  South  laid 
down  its  arms  and  accepted  the  Union  again,  the 
people  would  have  any  chance  to  receive  compensa 
tion  for  their  slaves.  To  this  Mr.  Lincoln  replied  that 
he  could  not  promise  what  the  attitude  of  the  Gov 
ernment  might  be  on  the  subject,  but  for  himself  he 
would  heartily  favor  a  compensation  on  the  ground 

1  The  Hampton  Roads  Conference.  See  also  Fitzhugh  Lee's  "Fail 
ure  of  the  Hampton  Roads  Conference,"  Century  Magazine  (July, 
1896),  LII,  476. 


SERVICES  TO  THE  CONFEDERACY    167 

that  the  North  was  as  responsible  for  slavery  as  the 
South  and  had  abetted  in  it,  traded  in  it,  and  de 
fended  it  until  slavery  became  a  vast,  public  ques 
tion  and  invited  war." 

While  the  evidence  is  overwhelmingly  against  the 
suggestion  that  Mr.  Lincoln  made  any  of  the  propo 
sitions  to  the  Commissioners,  it  is  not  improbable 
that  there  is  foundation  for  the  belief  that,  with  the 
acceptance  of  the  basic  propositions,  namely,  re 
turn  to  the  Union,  disbanding  of  the  Confederate 
armies,  and  acceptance  of  the  emancipation  of  the 
slaves,  undefined  suggestions  looking  to  adjust 
ments  and  amnesties  were  made.  General  Grant 
writes  that  "not  a  great  while  after  the  Conference" 
Mr.  Lincoln  visited  him  at  City  Point.  "He  spoke 
of  having  met  the  Commissioners  and  said  that  he 
had  told  them  that  there  would  be  no  use  in  enter 
ing  into  negotiations  unless  they  would  recognize, 
first,  that  the  Union,  as  a  whole,  must  be  forever 
preserved,  and  second,  that  slavery  must  be  abol 
ished.  If  they  were  willing  to  concede  these  two 
points,  then  he  was  ready  to  enter  into  negotiations 
and  was  almost  willing  to  hand  them  a  blank  sheet 
of  paper  with  his  signature  attached,  for  them  to  fill 
in  the  terms  upon  which  they  were  willing  to  live 
with  us  in  the  Union  and  be  one  people."  !x  This  was 
written  twenty  years  after  the  conversation  with 
Mr.  Lincoln,  but  it  is  probably  a  fairly  accurate  ac 
count  of  what  he  said.  It  will  be  noted  that  Grant 
does  not  state  that  Mr.  Lincoln  said  that  he  made 
this  proposition  to  the  Commissioners,  but  that,  as 

1  Grant,  U.  S. :  Personal  Memoirs,  u,  422. 


168      JOHN  ARCHIBALD  CAMPBELL 

a  prerequisite  to  any  negotiations,  the  Commission 
ers  were  to  recognize  that  the  Union  was  to  be  pre 
served  and  slavery  abolished,  and  if  they  agreed  to 
those  points,  then  Mr.  Lincoln  had  a  certain  disposi 
tion  which  he  indicated  to  Grant,  but  he  does  not 
say  that  he  indicated  it  to  the  Commissioners.  There 
is  abundant  evidence  that  Mr.  Lincoln  favored  in 
demnifying  the  Southern  people  for  the  slaves  and 
that  the  figure  $400,000,000  was  in  his  mind. 

Among  the  papers  of  William  Pitt  Fessenden, 
Secretary  of  the  Treasury  in  1865,  was  found  the 
following : 

"A  summons  to  a  Cabinet  meeting  on  the  en 
graved  form  used  for  that  purpose. 

"  DEPARTMENT  OF  STATE 
"  WASHINGTON,  February  5,  1865 

"SiB: 

"The  President  desires  a  meeting  of  the  Heads  of 
Departments  at  the  Executive  Mansion  at  7  o'clock 
this  evening. 

"F.  W.  SEWARD,  Ass't.  Sec'ty." 

Senator  Fessenden  returned  from  the  meeting 
and  endorsed  the  invitation: 

"A  proposition  to  offer  the  Confederate  and  other 
slave  States  400  millions  of  dollars,  to  be  divided 
among  them  according  to  the  census  of  1860,  and  a 
general  amnesty,  provided  they  disbanded  before 
April  1st,  200  million  to  be  paid  then  and  the  other 
200  million  on  July  1st,  if  the  Constitutional  Amend 
ment  be  then  adopted."  1 

1  Fessenden,  Francis:  The  Life  and  Public  Services  of  William 
Pitt  Fessenden,  n,  7. 

1  '"$" 
.  ?  M^V-*" 


*--  '     ,  -   r* 
$  "•         J-"       .  /» 


SERVICES  TO  THE  CONFEDERACY     169 

It  will  be  noted  that  this  meeting  occurred  two 
days  after  the  Conference.  The  Cabinet  opposed 
submitting  the  proposition  to  Congress. 

It  is  also  significant  that  in  Judge  Campbell's 
" Memorandum/'  drawn  up  at  the  request  of,  and 
approved  by,  his  associates,  while  the  fundamental 
conditions  upon  which  peace  could  be  secured  are 
stated  clearly,  there  runs  through  the  language  used 
the  suggestion  that  terms  of  adjustment  were  left 
open  and  that  the  statement  made  by  Senator 
Hunter  that  Mr.  Lincoln  demanded  "  unconditional 
submission  "  was  promptly  repudiated.  Judge  Camp 
bell's  questions  indicate  that  he  was  seeking  infor 
mation  in  respect  to  practical  plans  for  settling 
the  questions  which  would  arise  upon  the  recon 
struction  of  the  TJnion.  Mr.  Lincoln  had  in  his  mind 
"indemnities  to  the  masters  of  slaves." 

In  a  letter  to  J.  M.  Mason,  June  11,  1870,  Jeffer 
son  Davis  writes:  "Mr.  Hunter  promised  me  that  he 
would  write  a  full  account  of  the  sayings  and  doings 
of  the  Commission  which  met  Lincoln  and  Seward 
at  Hampton  Roads.  I  have  not  thought  it  well 
to  write  him  while  he  was  subject  to  military  and 
Underwood  authority."  He  further  writes:  "They 
agreed  with  Lincoln  and  Seward  that  they  would 
regard  their  conversations  as  confidential.  The  re 
port  when  they  came  back  was,  therefore,  to  a  great 
extent,  oral;  the  written  report  so  meager  as  not  to 
furnish,  as  it  seemed  to  me,  what  was  needful  to  a 
fair  comprehension  of  their  failure  and  the  reasons 
for  it.  I  urged,  seriously,  that  a  fuller  report  should 
be  made."  Mr.  Davis  refers  to  what  Hunter  told 


170      JOHN  ARCHIBALD  CAMPBELL 

him,  and  this  Mr.  Davis  regarded  as  a  "  surrender 
at  discretion/'  This  letter,  General  Fitzhugh  Lee 
says,  Mason  sent  to  Hunter,  who,  on  September  19, 
1870,  wrote  Mason,  saying:  "I  have  read  Davis's 
letter  which  you  enclosed,  and  regret  that  I  did  not 
write  out  minutely  my  recollections  of  what  passed 
at  the  Hampton  Roads  Conference  whilst  they  were 
fresh  in  my  mind.  But  I  was  imprisoned  soon  after 
the  war,  and  my  papers  were  either  seized  or  dis 
persed,  and  since  my  release  I  have  been  engaged  in 
hard  work  for  a  livelihood.'7  He  says  that  he  had  ex 
amined  Stephens's  account  of  the  Conference  pub 
lished  in  the  " Eclectic  Review,"  and  it  seemed  to 
him  very  fair  "and  from  which  I  do  not  much  differ, 
except  as  to  the  report  of  Seward's  conversation  on 
slavery.  ...  I  know  that  in  our  opinion  no  settle 
ment  was  possible  except  upon  the  condition  of  abol 
ishing  slavery  and  returning  to  the  Union.  But  there 
was  a  question  beyond  that.  Supposing  these  things 
to  be  inevitable,  as  they  then  seemed  to  be,  was  it 
not  worth  the  effort  to  save  as  much  as  possible 
from  the  wreck?  Upon  this  Mr.  Davis  and  I  differed. 
I  thought  the  effort  ought  to  be  made,  but  I  saw 
then,  and  see  it  still  more  plainly  now,  that  there 
might  be  two  sides  to  that  question."1 

Judge  Campbell  wrote  to  Hunter,  October  31, 
1877,  that  he  concurred  with  his  recollection  as  to 
what  occurred  at  the  Conference.  The  frequent 
references  made  by  Alexander  H.  Stephens  in  the 
" Recollections,"  being  his  journal  kept  while  im- 

-4/    *  Lee,  Fitzhugh:  "Failure  of  the  Hampton  Roads  Conference," 
Century  Magazine  (July,  1896),  LII,  476. 


SERVICES  TO  THE  CONFEDERACY    171 

prisoned  at  Fort  Warren,  indicate  that  something 
was  said  to  the  Commissioners  at  Hampton  Roads 
by  Mr.  Lincoln  which  he  did  not  feel  at  liberty  to 
make  public.  Stephens  was  greatly  distressed  by 
the  publication  of  an  article  in  the  "  Chronicle  and 
Sentinel"  of  Augusta,  Georgia,  purporting  to  con 
tain  his  version  of  what  was  said  at  the  Conference. 
He  says:  "The  reasons  I  am  reported  to  have  as 
signed  for  not  making  public  what  Mr.  Lincoln  said 
about  compensation  for  emancipated  slaves,  is  not 
accurately  put;  nor  is  what  Mr.  Lincoln  said  on  that 
subject."  1 

In  his  letter  to  Seward  he  wrote:  "I  have  made  no 
report  for  the  public  but  that  which  was  joint  with 
the  other  Commissioners  and  which  was  published 
in  the  Richmond  papers.  Upon  the  main  points  in 
that  Conference,  those  upon  which  it  was  sought,  I 
have  never,  even  in  private,  made  any  statement 
that  could  reach  the  public.  For  great  public  reasons, 
I  abstained  from  it.2  Stephens  later  gave  his  version 
of  the  Conference."  3 

Judge  Campbell  concurred  with  Hunter  and  Ste 
phens  in  thinking  that  Mr.  Lincoln's  proposition 
should  have  been  made  the  basis  of  further  negotia 
tion.  Mr.  Davis  did  not  concur  with  them.  On  July 
10,  1865,  Judge  Campbell  wrote:  "I  acted  as  one  of 
the  Commissioners  at  the  Conference  in  Hampton 
Roads  and  evinced  earnest  disposition  to  make 
peace  at  that  Conference.  I  refused  to  participate  in 
the  meeting  to  influence  the  people  on  my  return 

1  Recollections,  281.  2  Ibid.,  373. 

8  The  War  Between  the  States,  chap.  xxm. 


172      JOHN  ARCHIBALD  CAMPBELL 

from  that  Conference.  I  urged  the  appointment  of  a 
Commission  for  the  purpose  of  entering  into  negoti 
ations  upon  the  basis  of  Mr.  Lincoln's  propositions. 
I  addressed,  at  the  request  of  Governor  Graham,  of 
North  Carolina,  a  letter  to  him  explaining  Mr.  Lin 
coln's  views,  how  they  would  leave  the  Confederate 
States  and  urging  the  effort  to  accept  the  terms  he 
held  out." 

Judge  Campbell  reviews  the  condition  of  the 
Army  and  the  Treasury,  concluding:  "It  is  the  prov 
ince  of  statesmanship  to  consider  these  things.  The 
South  may  succumb,  but  it  is  not  necessary  that  she 
should  be  destroyed.  I  do  not  regard  reconstruction 
as  involving  destruction,  unless  our  people  should 
forget  the  incidents  of  their  heroic  struggle  and  be 
come  debased  and  degraded.  It  is  the  duty  of  their 
statesmen  and  patriots  to  guard  them  in  the  future 
with  even  more  care  and  tenderness  than  they  have 
done  in  the  past.  There  is  anarchy  in  the  opinions  of 
men  here,  and  few  are  willing  to  incur  the  responsi 
bility  of  taking  or  advising  action.  In  these  circum 
stances,  I  have  surveyed  the  whole  ground,  I  be 
lieve  calmly  and  dispassionately.  The  picture  I  do 
not  think  has  been  too  highly  colored.  I  do  not  ask 
that  my  views  be  accepted,  but  that  a  candid  in 
quiry  be  made  with  a  view  to  action.  I  recommend 
that  General  Lee  be  requested  to  give  his  opinion 
upon  the  condition  of  the  country,  upon  the  sub 
mission  of  these  facts,  and  that  the  President  sub 
mit  the  subject  to  the  Senate,  or  to  Congress,  and 
invite  their  action.'7 

As  the  result  of  this  letter  and  the  action  taken  by 


SERVICES  TO  THE  CONFEDERACY    173 

the  Secretary  of  War,  the  information  derived  from 
the  heads  of  the  Departments  and  from  General 
Lee,  a  communication  enclosing  the  reports  was 
submitted  to  Congress,  March  14,  1865.  A  resolu 
tion  was  prepared  by  W.  C.  Rives,  reciting  the  con 
ditions,  declaring  that  a  longer  prosecution  of  the 
war  with  any  reasonable  prospect  of  success  was 
impracticable,  and  advising  the  President  to  pro 
pose  an  armistice  preliminary  to  the  reestablish- 
ment  of  peace  and  Union,  "and  for  the  special  pur 
pose  of  settling  and  ascertaining  certain  points 
incident  thereto,  to  restoration  of  the  Union,  and 
particularly  whether  the  seceded  States,  on  their 
return,  will  be  secured  in  their  rights  and  privileges 
as  States  under  the  Constitution  of  the  United 
States." 

This  resolution  was  handed  by  Judge  Campbell 
to  William  A.  Graham,  Senator  from  North  Caro 
lina,  to  be  offered  in  the  Senate.  Graham  concurred 
in  its  recitals  and  in  the  advice  to  the  President  and 
the  necessity  for  prompt  action.  He  submitted  it  to 
a  number  of  Senators  who  said  that,  if  passed,  no 
action  would  be  taken  and  nothing  could  be  done. 
Graham,  therefore,  returned  it  to  Judge  Campbell. 
William  A.  Graham,  a  man  of  singular  purity  of  life, 
loftiness  of  purpose,  and  sanity  of  mind,  in  a  letter 
to  Mrs.  Graham,  February  26,  1865,  writes:  "I  have 
had  several  confidential  conversations  with  Judge 
Campbell,  who  is  the  most  judicious  man  connected 
with  the  Government." 


CHAPTER  VII 

THE  PROBLEM  OF  RESTORATION 

THE  evacuation  of  Richmond,  April  2, 1865,  brought 
Judge  Campbell's  official  career  to  an  end  and  closed 
another  chapter  in  his  life.  He  knew  perfectly  well 
that  General  Lee  could  not  longer  continue  the 
struggle,  and  that  the  surrender  of  his  army  and  the 
downfall  of  the  Confederacy  were  imminent.  Re 
ferring  to  his  efforts  to  secure  negotiation,  he  says: 
"All  these  efforts  being  abortive,  I  could  only  await 
the  ruin  certain  to  arrive.  I  wrote  to  Governor  Fitz- 
patrick  of  Alabama,  of  date  9th  March,  '65,  telling 
him  that  Richmond  would  be  evacuated,  General 
Lee's  army  disbanded  or  surrendered,  and  the  Con 
federate  cause  destroyed,  and  to  take  measures  for 
the  restoration  of  Alabama  to  the  Union.  I  deter 
mined  to  remain  in  Richmond  when  evacuation 
should  occur  and  to  renew  my  obligations  to  the 
United  States." 

Judge  Campbell  now  made  his  last  effort  to  serve 
the  South  as  a  peacemaker.  Probably  there  is  no 
office  which  a  man  can  undertake,  so  far  as  the  ap 
preciation  of  those  whom  he  attempts  to  serve  is 
concerned,  which  subjects  him  to  more  criticism  and 
brings  him  less  compensation  than  that  of  a  medi 
ator.  It  is  very  doubtful  whether  any  statesman 
has  advanced  his  reputation  or  strengthened  his 
hold  upon  popular  favor  by  efforts  to  secure  peace 
between  warring  factions  or  belligerent  nations.  It 


THE  PROBLEM  OF  RESTORATION    175 

is  equally  doubtful  whether  so  high  and  valuable 
a  service  is  rendered  in  any  other  capacity.  While 
Judge  Campbell's  efforts  to  promote  peace  were 
prompted  by  the  highest  motive  and  the  most  pa 
triotic  purpose,  they  subjected  him  to  misunder 
standing,  misconstruction,  and  misrepresentation. 

In  view  of  the  distorted  accounts  of  his  conversa 
tions  with  Mr.  Lincoln  in  Richmond,  and  his  con 
duct  based  upon  his  letters  of  April  6  and  7,  1865,  a 
recital  of  the  principal  facts  connected  with  this  in 
cident  in  his  career  is  necessary.  In  his  account  of 
the  manner  in  which  he  was  brought  into  conversa 
tion  with  Mr.  Lincoln  and  the  subsequent  course  pur 
sued  by  him,  he  says  that  after  the  entry  of  the  Fed 
eral  army  into  Richmond,  he  called  upon  General 
Shepley,  Military  Governor,  who  informed  him  that 
Mr.  Lincoln  was  then  at  City  Point.  To  the  sugges 
tion  of  Judge  Campbell  that  he  would  be  pleased  to 
meet  the  President,  the  General  said  that  he  would 
see  General  Weitzel,  in  command  of  the  army  of  oc 
cupation,  and  if  he  consented  would  telegraph  him. 
Mr.  Lincoln  came  to  the  city  that  afternoon,  going 
to  the  house  recently  occupied  by  Mr.  Davis.  Judge 
Campbell  says:  " Shortly  after  his  arrival  a  staff 
officer  came  for  me  and  I  was  conducted  to  a  small 
room  in  that  building,  where  I  met  President  Lin 
coln  and  General  Weitzel.  .  .  .  His  manner  indicated 
that  he  expected  some  special  and,  perhaps,  author 
ized  communication  to  him  from  the  Confederate 
Government.  I  disabused  his  mind  of  this  by  saying 
that  I  had  no  commission  to  see  him.  ...  I  then 
told  Mr.  Lincoln  that  the  war  was  over,  and  all  that 


176      JOHN  ARCHIBALD  CAMPBELL 

remained  to  be  done  was  to  compose  the  country. 
...  I  spoke  to  him  particularly  for  Virginia,  and 
urged  him  to  consult  and  counsel  with  her  public 
men  and  her  citizens  as  to  the  restoration  of  peace, 
civil  order,  and  the  renewal  of  her  relations  as  a 
member  of  the  Union.  I  urged  that,  although  there 
had  been  passion,  petulance,  and  animosity  in  the 
secession  movements,  there  were  also  serious  differ 
ences  of  opinion  as  to  constitutional  obligations  and 
responsibilities,  upon  which  there  was  a  ground  for 
opposing  opinions.  I  informed  him  that  efforts  for 
peace  had  been  made  during  the  winter  and  that 
the  most  prominent  men  of  the  State  were  ready  to 
aid  in  the  work  of  pacification,  and  that  if  he  would 
call  them  together  the  work  would  be  nearly  done; 
that  'when  leniency  and  cruelty  play  for  the  con 
quest  of  a  kingdom,  the  gentlest  player  will  be  the 
soonest  winner.7  Mr.  Lincoln  asked  me  to  whom  I 
alluded  in  asking  him  to  take  counsel  with  the  pub 
lic  men  of  Virginia.  I  mentioned,  among  others,  Mr. 
Rives,  Mr.  Hunter,  Governor  Letcher,  Mr.  Bald 
win,  Mr.  Caperton,  Mr.  Holcombe,  and  General 
Lee  himself.  Mr.  Lincoln,  at  the  end,  answered  that 
my  general  principles  were  right;  the  trouble  was 
how  to  apply  them;  that  he  was  impressed  with 
what  I  had  said  of  the  difficulty  of  finding  any  one 
willing  to  deal  with  the  subject  of  peace.  He  said 
that  he  '  wanted  to  have  another  talk/  and,  for  that 
purpose,  would  remain  in  Richmond  that  night.  .  .  . 
It  was  agreed  that  I  should  visit  him  on  the  gunboat 
(Malvern)  on  which  he  had  come  to  Richmond  from 
City  Point,  and  that  I  might  bring  with  me  citizens 


THE  PROBLEM  OF  RESTORATION    177 

of  the  place.  I  sent  invitations  to  several,  but 
most  of  them  were  absentees,  others  declined  to  go 
with  me." 

On  the  following  day,  accompanied  by  Gustavus 
Myers,  a  member  of  the  Richmond  Bar,  Judge 
Campbell  went  to  see  the  President.  He  says:  "The 
President  was  prepared  for  the  visit  and  spoke  with 
freedom  and  apparent  decision.  ...  In  the  course  of 
the  conversation,  he  produced  a  paper  written  by 
himself,  but  not  signed  nor  addressed  to  any  one. 
This  paper  he  read  over,  and  then  commented  upon 
each  clause  at  some  length  and  handed  the  paper  to 
me.  I  did  not  perceive  any  material  difference  be 
tween  the  terms  expressed  in  this  paper  and  those 
announced  by  the  President  at  Hampton  Roads. 
.  .  .  My  answer  to  the  President  was  that  I  did  not 
believe  that  there  would  be  any  opposition  to  his 
terms.  .  .  .  Mr.  Lincoln  told  me  that  he  had  been 
meditating  a  plan,  but  that  he  had  not  fixed  upon 
it,  and  if  he  adopted  it,  would  write  to  General 
Weitzel  from  City  Point.  This  was  to  call  the  Vir 
ginia  Legislature  together,  'the  very  Legislature 
which  had  been  sitting  up  yonder/  pointing  to 
the  Capitol,  Ho  vote  the  restoration  of  Virginia 
to  the  Union.'  He  said  he  had  a  government  in  Vir 
ginia —  the  Pierpont  Government  —  but  it  'had 
a  very  small  margin/  and  he  was  not  'disposed  to 
increase  it."; 

After  some  inquiries  addressed  to  Mr.  Myers, 
relative  to  the  composition  of  the  Legislature,  they 
parted  with  him  with  expressions  of  mutual  good 
will.  The  next  day,  April  6,  1865,  Mr.  Lincoln  sent 


178      JOHN  ARCHIBALD  CAMPBELL 

General  Weitzel  the  following  letter:  "It  has  been 
intimated  to  me  that  the  gentlemen  who  have  acted 
as  the  Legislature  of  Virginia,  in  support  of  the  re 
bellion,  may  now  desire  to  assemble  at  Richmond, 
and  take  measures  to  withdraw  the  Virginia  troops 
and  other  support,  from  resistance  to  the  General 
Government.  If  they  attempt  it,  give  them  permis 
sion  and  protection  until,  if  at  all,  they  attempt 
some  action  hostile  to  the  United  States,  in  which 
case  you  will  notify  them,  give  them  reasonable  time 
to  leave,  and  at  the  end  of  which  time  arrest  any 
who  remain.  Allow  Judge  Campbell  to  see  this,  but 
do  not  make  it  public." 

In  accordance  with  the  interpretation  placed  upon 
the  letter  by  Judge  Campbell,  on  April  7,  1865,  he 
addressed  a  letter  to  General  Joseph  R.  Anderson 
and  others,  as  a  Committee,  setting  out  the  sub 
stance  of  Mr.  Lincoln's  terms  contained  in  the 
"Memorandum"  given  him,  and  the  conversations 
with  him.  The  members  of  the  Legislature  then  in 
Richmond  promptly  met,  and  with  the  approval  of 
General  Weitzel,  issued  an  "Address  to  the  People 
of  Virginia." 

But  on  April  12,  Mr.  Lincoln  addressed  a  letter  to 
General  Weitzel,  withdrawing  his  consent  for  the 
Legislature  to  assemble.  Senator  R.  M.  T.  Hunter 
went  to  Richmond  to  meet  the  Legislature,  but  was 
ordered  to  leave  within  twenty-four  hours.  Judge 
Campbell,  together  with  Mr.  Hunter,  proposed  to 
General  Ord,  who  had  relieved  General  Weitzel,  to 
go  to  see  Mr.  Lincoln.  A  telegram  was  sent  on  April 
14,  1865,  to  Washington,  asking  permission  to  go. 


THE  PROBLEM  OF  RESTORATION     179 

No  answer  was  received.  That  night  Mr.  Lincoln 
was  assassinated. 

The  " Memorandum"  handed  to  Judge  Campbell 
by  Mr.  Lincoln  was  as  follows : 

"  As  to  peace,  I  have  said  before,  and  now  repeat, 
that  three  things  are  indispensable: 

"1.  The  restoration  of  the  National  authority 
throughout  the  United  States. 

"2.  No  receding  by  the  Executive  of  the  United 
States  on  the  slavery  question  from  the  position  as 
sumed  thereon  in  the  late  annual  message,  and  in 
preceding  documents. 

"3.  No  cessation  of  hostilities  short  of  an  end  of 
the  war,  and  the  disbanding  of  all  forces  hostile  to 
the  Government.  That  all  propositions  coming  from 
those  now  in  hostility  to  the  Government,  not  incon 
sistent  with  the  foregoing,  will  be  respectfully  consid 
ered  and  passed  upon  in  a  spirit  of  sincere  liberality. 

"I  now  add  that  it  seems  useless  for  me  to  be 
more  specific  with  those  who  will  not  say  that  they 
are  ready  for  the  indispensable  terms,  even  on  con 
ditions  to  be  named  by  themselves.  If  there  be  any 
who  are  ready  for  these  indispensable  terms,  on  any 
conditions  whatever,  let  them  say  so,  and  state 
their  conditions,  so  that  the  conditions  can  be 
known  and  considered.  It  is  further  added,  that  the 
remission  of  confiscation  being  within  the  executive 
power,  if  the  war  be  now  further  persisted  in  by 
those  opposing  the  Government,  the  making  of  con 
fiscated  property  at  the  least  to  bear  the  additional 
cost  will  be  insisted  on,  but  that  confiscations  (ex 
cept  in  case  of  third  party  intervening  interests)  will 


180      JOHN  ARCHIBALD  CAMPBELL 

be  remitted  to  the  people  of  any  State  which  shall  now 
promptly  and  in  good  faith  withdraw  its  troops  from 
further  resistance  to  the  Government.  What  is  now 
said  as  to  the  remission  of  confiscation  has  no  refer 
ence  to  supposed  property  in  slaves." 

Thus  ended  in  failure  the  last  effort  made  by 
Judge  Campbell  as  a  mediator  and  to  promote 
peace.  As  this  transaction  has  a  relation  to  subse 
quent  events  of  larger  significance,  a  full  account  of 
the  conduct  of  all  who  were  concerned  in  it  is  im 
portant  and  of  interest. 

It  will  be  well  to  keep  in  mind  the  order  in  which 
these  events  occurred.  Mr.  Lincoln  came  to  Rich 
mond  and  had  the  first  conversation  with  Judge 
Campbell,  in  the  presence  of  General  Weitzel,  on 
April  4,  1865.  On  April  5  the  second  conversation 
took  place  when  Mr.  Lincoln  gave  Judge  Campbell 
the  " Memorandum"  which  Mr.  Lincoln  read  over 
and  commented  upon.  On  April  6,  1865,  Mr.  Lincoln 
sent  to  General  Weitzel  the  letter  which  he  directed 
to  be  shown  to  Judge  Campbell.  Acting  upon  the 
" Memorandum"  and  the  letter,  as  interpreted  by 
him,  by  General  Weitzel,  and  by  General  Shepley, 
Judge  Campbell,  on  April  7,  prepared  the  letter 
to  General  Joseph  R.  Anderson  and  other  citizens. 
On  April  11,  1865,  Judge  Campbell  prepared  and 
submitted  to  General  Weitzel  the  "  Address  to  the 
People  of  Virginia."  Upon  this  " Address"  General 
Weitzel  wrote  the  words,  "  Approved  for  publication 
in  the  'Whig'  and  in  handbill  form.  G.  Weitzel, 
Major  General  Commanding."  Judge  Campbell's 
letter  and  the  "  Address  "  were  inspected  and  revised 


THE  PROBLEM  OF  RESTORATION    181 

by  General  Shepley,  the  Military  Governor,  and 
General  Weitzel,  and  examined  by  Charles  A.  Dana, 
Assistant  Secretary  of  War,  then  in  Richmond.1 

General  Lee  surrendered  April  9,  1865.  Mr.  Lin 
coln  returned  to  Washington  on  the  evening  of  that 
day.  He  addressed  a  meeting  of  the  people  at  the 
White  House  on  Tuesday  night,  April  11,  in  which 
he  said  that  he  had  prepared  a  plan  for  the  inaugura 
tion  of  the  National  authority  and  reconstruction  in 
1863,  which  would  be  acceptable  to  the  Executive 
Department,  and  that  it  was  approved  by  every 
member  of  the  Cabinet;  but  he  was  now  censured  for 
his  agency  in  setting  up  and  seeking  to  sustain  the 
State  Governments,  though  the  Executive  claimed 
no  right  to  say  when  or  whether  members  should  be 
admitted  to  seats  in  Congress.  Mr.  Welles  says  that 
at  the  Cabinet  meeting  on  Tuesday,  the  proclama 
tion  or  order  of  General  Weitzel  was  discussed  very 
fully.  It  caused  surprise  and,  on  the  part  of  some, 
dissatisfaction  and  irritation.  "Stanton  and  Speed 
were  particularly  disturbed/'  Mr.  Lincoln  was  sur 
prised  that  his  object  and  the  movement  were  so 
generally  misunderstood,  and  said  that,  under  the 
circumstances,  perhaps,  it  would  be  best  that  the 
proceeding  should  be  abandoned;  that  he  could  not 
go  on  with  every  one  opposed  to  him,  but  that  civil 
government  must  be  established  as  soon  as  possible 
in  those  States  where  hostilities  had  ceased.  There 
must  be  courts  and  law  and  order,  or  society  would 
be  dissolved.2 

1  John  A.  Campbell:  Recollections,  9,  20,  23. 

2  Galaxy,  April-May,  1872,  521,  663. 


182      JOHN  ARCHIBALD  CAMPBELL 

Mr.  Stanton,  in  his  examination  before  the  Judi 
ciary  Committee  of  the  House  of  Representatives, 
May  18,  1867,  gives  his  version  of  the  course  pur 
sued  by  Mr.  Lincoln  and  the  influence  under  which 
he  acted.  He  said:  " President  Lincoln  went  to  the 
city  of  Richmond,  after  its  capture,  and  some  inter 
course  took  place  between  him  and  Judge  Campbell, 
formerly  of  the  Supreme  Court  of  the  United  States, 
and  General  Weitzel,  which  resulted  in  the  call  of 
the  rebel  Legislature  to  Richmond.  Mr.  Lincoln  on 
his  return  to  Washington  reconsidered  that  matter. 
The  policy  of  undertaking  to  restore  the  govern 
ment,  through  the  medium  of  rebel  organizations, 
was  very  much  opposed  by  many  persons  and  very 
strongly  and  vehemently  opposed  by  myself.  ...  I 
had  several  earnest  conversations  with  Mr.  Lincoln 
on  the  subject  and  advised  that  any  effort  to  reor 
ganize  the  Government  should  be  under  the  Federal 
authority  solely,  and  to  treat  the  rebel  organizations 
as  absolutely  null  and  void.  The  day  preceding  his 
death,  a  conversation  took  place  between  him,  the 
Attorney-General,  and  myself,  upon  the  subject,  at 
the  Executive  Mansion.  An  hour  or  two  afterwards 
and  about  the  middle  of  the  afternoon,  Mr.  Lincoln 
came  over  to  the  War  Department  and  renewed  the 
conversation.  After  I  had  repeated  my  reasons 
against  allowing  rebel  Legislatures  to  assemble,  or 
rebel  authorities  to  have  any  participation  whatever 
in  the  business  of  reorganization,  he  sat  down  at  my 
desk,  took  a  piece  of  paper,  and  wrote  a  telegram  to 
General  Weitzel  and  handed  it  to  me.  '  There/  said 
he;  'I  think  that  will  suit  you/  I  told  him  no,  it  did 


THE  PROBLEM  OF  RESTORATION    183 

not  go  quite  far  enough;  that  members  of  the  rebel 
Legislature  would  probably  come  to  Richmond,  and 
that  General  Weitzel  ought  to  be  directed  to  pro 
hibit  their  assembling.  He  took  up  his  pen  again  and 
made  that  addition  to  the  telegram  and  signed  it. 
He  handed  it  to  me.  I  said  I  thought  that  was  ex 
actly  right.  It  was  transmitted  immediately  to  Gen 
eral  Weitzel  and  was  the  last  act  ever  performed  by 
Mr.  Lincoln  in  the  War  Department." 

It  does  not  appear  that  Judge  Campbell  saw  Mr. 
Lincoln's  dispatch  of  April  12  to  General  Weitzel. 
This  dispatch,  read  in  the  light  of  Mr.  Stanton's 
statement,  contains  several  significant  sentences. 
He  says  that  Judge  Campbell  "  assumes  that  I  have 
called  the  insurgent  Legislature  of  Virginia  together, 
as  the  rightful  Legislature  of  the  State  to  settle  all 
differences  with  the  United  States.  I  have  done  no 
such  thing.  I  spoke  of  them,  not  as  the  Legislature, 
but  as '  the  gentlemen  who  have  acted  as  the  Legisla 
ture  of  Virginia  in  support  of  the  rebellion.'  I  did 
this  on  purpose  to  exclude  the  assumption  that  I  was 
recognizing  them  as  a  rightful  body.  I  dealt  with 
them  as  men  having  power  de  facto  to  do  a  specific 
thing,  to-wit,  to  withdraw  the  Virginia  troops  and 
other  support  from  resistance  to  the  general  Govern 
ment  for  which,  in  the  paper  handed  to  Judge  Camp 
bell,  I  promised  a  special  equivalent,  to-wit,  a  remis 
sion  to  the  people  of  the  State,  except  in  certain 
cases,  of  the  confiscation  of  their  property.  Inas 
much  as  Judge  Campbell  misconstrued  this,  and  is 
still  pressing  for  an  armistice  contrary  to  the  ex 
plicit  statement  of  the  paper  I  gave  him,  and  par- 


184      JOHN  ARCHIBALD  CAMPBELL 

ticularly  as  General  Grant  has  since  captured  the 
Virginia  troops,  so  that  giving  consideration  for 
their  withdrawal  is  no  longer  applicable,  I  wish  my 
letter  to  you  and  the  paper  to  Judge  Campbell,  both 
to  be  withdrawn  or  countermanded  and  he  be  noti 
fied  of  it."  Stanton  says  that  the  following  words 
were,  at  his  request,  added:  "Do  not  allow  them  to 
assemble,  but  if  any  have  come,  allow  them  safe 
return  to  their  homes." 

The  President  had  before  him  the  letter  of  April 
7  addressed  to  General  Anderson  and  others  by 
Judge  Campbell,  and  a  letter  of  the  same  date  writ 
ten  by  Judge  Campbell  to  General  Weitzel.  He  says 
that  Judge  Campbell  misunderstood  him  in  assum 
ing  that  he  called  "the  insurgent  Legislature  of  Vir 
ginia  as  the  rightful  legislature."  This  involves  a 
question  of  construction  of  language  and  carries  no 
suggestion  of  misrepresentation.  It  is  due  to  Judge 
Campbell  to  call  attention  to  the  fact  that,  in  the 
letter  of  April  7,  two  days  after  the  conversation 
with  Mr.  Lincoln  and  one  day  after  the  receipt  of 
the  letter  from  Mr.  Lincoln,  and  doubtless  with  it 
before  them,  General  Weitzel  and  General  Shepley, 
the  latter  a  lawyer  of  distinction,  familiar  with  Mr. 
Lincoln's  reconstruction  plans,  Military  Governor 
of  Richmond  and  later  United  States  Circuit  Judge, 
" inspected  and  revised"  the  letter  to  General  An 
derson  and  the  letter  of  the  Committee.1  These  let 
ters  were  examined  by  Charles  A.  Dana,  Assistant 
Secretary  of  War.  It  will  be  observed  that  the  letter 
to  General  Anderson  states  that  the  letter  from  Mr, 

1  Appleton's  Cyclopaedia  of  American  Biography,  v,  416. 


THE  PROBLEM  OF  RESTORATION    185 

Lincoln  to  General  Weitzel  " authorized"  the  latter 
to  "  grant  all  the  facilities  of  transportation,  etc.,  to 
the  members  of  the  Legislature  to  meet,"  etc.  The 
"  Address  to  the  People  of  Virginia"  was  signed  by  a 
Committee  composed  of  thirty-two  citizens,  writ 
ten  by  Judge  Campbell,  and  contained  the  words, 
"  The  General  Assembly  of  the  Slate  is  called  for  by  the 
exigencies  of  the  situation.  That  the  consent  of  the 
military  authorities  of  the  United  States  to  the  ses 
sion  of  the  Legislature  in  Richmond  .  .  .  has  been 
obtained." 

Mr.  Lincoln  further  says  that  Judge  Campbell 
erroneously  assumed  that  he  called  the  Legislature 
"to  settle  all  differences  with  the  United  States." 
Judge  Campbell  wrote  that  he  was  of  the  opinion 
that  "the  object  of  the  invitation  is  for  the  Govern 
ment  of  Virginia  to  determine  whether  they  will  ad 
minister  the  laws  in  connection  with  the  authorities 
of  the  United  States."  He  "understood  from  Mr. 
Lincoln,  if  this  condition  be  fulfilled,  that  no  at 
tempt  would  be  made  to  establish  or  sustain  any 
other  authority."  He  thereupon  set  forth  the  "in 
dispensable  conditions"  of  a  settlement,  as  stated 
by  Mr.  Lincoln,  in  the  written  "Memorandum" 
given  to  him.  This  letter  bears  date  April  7,  two 
days  before  Lee's  surrender.  The  "Address  to  the 
People  of  Virginia,"  dated  April  11,  recites,  among 
other  occurrences,  "the  surrender  of  the  Army  of 
Northern  Virginia  and  the  suspension  of  the  juris 
diction  of  the  civil  power"  as  among  "the  exigencies 
of  the  situation"  which  required  "the  immediate 
meeting  of  the  General  Assembly  of  the  State."  The 


186      JOHN  ARCHIBALD  CAMPBELL 

matters  to  be  submitted  to  the  Legislature  are  "the 
restoration  of  peace  to  the  State  of  Virginia,  and  the 
adjustment  of  questions  involving  life,  liberty,  and 
property  that  have  arisen  in  the  States,  as  a  conse 
quence  of  the  war." 

In  view  of  the  conditions  confronting  the  Presi 
dent  and  the  people  of  Virginia,  on  April  6,  1865,  it 
would  not  seem  that  the  statement  of  the  object  of 
the  meeting  of  the  Legislature  was  subject  to  the 
criticism  that  it  exceeded  the  scope  of  Mr.  Lincoln's 
conversation  and  written  "  Memorandum."  General 
Ord's  letter  is  carefully  framed.  He  wrote:  "I  am  in 
structed  by  the  President  to  inform  you  that,  since 
his  paper  was  written  on  the  subject  of  reconvening 
the  gentlemen  who  acted  under  the  insurrectionary 
Government  as  the  Legislature  of  Virginia,  events 
have  occurred  anticipating  the  objects  had  in  view 
and  the  convention  of  such  gentlemen  is  unneces 
sary.  He  wishes  the  paper  withdrawn  and  I  recall 
my  publications  assembling  them." 

Judge  Campbell  replied  to  the  letter,  enclosing 
the  " Memorandum"  given  to  him  by  the  President, 
saying:  "The  communication  of  President  Lincoln 
to  me,  in  respect  to  convening  the  Legislature  of 
Virginia,  was  addressed  to  General  Weitzel.  I  read 
this  communication  by  the  authority  of  the  writer 
and  imparted  its  import  to  those  who  were  inter 
ested  in  fulfilling  its  requirements.  The  object  was 
to  restore  peace  in  Virginia  on  the  terms  mentioned 
in  the  enclosed  paper  by  the  agency  of  the  authori 
ties  that  have  sustained  the  war  against  the  United 
States.  I  still  think  that  the  issue  would  have  been 


THE  PROBLEM  OF  RESTORATION    187 

most  favorable.  The  events  that  have  occurred  since 
have  removed  some  impediments  to  the  action 
sought  for  and  preclude  the  possibility  of  failure." 

This  letter  closed  the  incident,  so  far  as  Judge 
Campbell's  personal  relation  to  it  was  concerned.  In 
the  light  of  subsequent  revelations,  it  appears  that, 
unwittingly,  Judge  Campbell  was  working  at  cross- 
purposes  with  those  who  had  determined  to  prevent 
Mr.  Lincoln  from  carrying  out  his  "plan"  of  restor 
ing  the  seceded  States  to  their  relations  to  the 
Union.  A  marked  and  irreconcilable  difference  had 
arisen,  before  the  collapse  of  the  Confederacy,  be 
tween  Mr.  Lincoln  and  certain  Congressional  lead 
ers,  regarding  the  status  of  the  Southern  States  and 
the  method  of  their  restoration  to  their  normal  rela 
tions  to  the  Union.  This  difference  both  in  plan  and 
purpose  had  created  friction  between  the  President 
and  such  men  as  Sumner,  Stevens,  and  others  who 
were  in  agreement  with  them.  Stanton  states  the 
line  of  cleavage  between  Lincoln  and  those  with 
whom  he  was  in  accord,  saying  that  "Mr.  Lincoln 
seemed  to  be  laboring  under  the  impression  that 
there  must  be  some  starting-point  for  reorganiza 
tion,  and  that  it  could  only  be  through  the  agency  of 
rebel  organizations  then  existing,  but  which  I  did 
not  deem  at  all  necessary";  that  his  plan  was  to 
"treat  the  rebel  organizations  as  null  and  void"  and 
"to  exclude  the  Southern  leaders  from  any  partici 
pation  in  the  restoration  of  the  Union."  Mr.  Lincoln 
had,  in  his  interview  with  General  Grant  and  Gen 
eral  Sherman  at  City  Point,  on  March  27,  1865, 
clearly  outlined  his  plan  for  dealing  with  the  State 


188      JOHN  ARCHIBALD  CAMPBELL 

Governments,  in  his  instructions  to  General  Sher 
man  in  regard  to  the  course  to  be  pursued  by  him  in 
North  Carolina.  These  instructions,  which  later,  and 
after  Lincoln's  death,  became  the  subject  of  con 
troversy  between  General  Sherman  and  the  John 
son  Administration,  were  probably  not  known  to 
the  members  of  the  Cabinet  or  the  Congressional 
leaders.1 

On  April  22,  1865,  an  article  appeared  in  the 
"New  York  Tribune/7  purporting  to  give  an  ac 
count  of  the  conversations  between  Mr.  Lincoln  and 
Judge  Campbell,  and  of  the  conduct  of  both.  Upon 
seeing  the  article,  Judge  Campbell,  on  April  26, 
1865,  wrote  a  letter,  addressed  to  Mr.  Greeley,  in 
which  he  said: 

"The  statements  in  the  letter  are  erroneous  and 
injurious  in  reference  to  both,  and  it  is  hardly  possi 
ble  that  they  should  have  been  otherwise.  I  had  two 
conversations  with  President  Lincoln.  The  first  was 
in  the  presence  of  General  Weitzel  only,  the  second 
only  in  presence  of  General  Weitzel  and  G.  A.  My 
ers,  an  eminent  lawyer  of  this  city.  A  staff  officer 
came  after  me  to  have  the  first  at  his  quarters,  and 
the  second  was  had  on  the  steamer  Malvern  below 
this  city,  by  appointment  of  Mr.  Lincoln.  I  never 

1  Sherman's  Memoirs;  McClure,  A.  K.:  Abraham  Lincoln  and 
Men  of  War-Times,  218,  221;  Spencer:  Last  Ninety  Days  of  the  War 
in  North  Carolina,  chap,  xi;  Stephens:  The  War  Between  the  States, 
614;  Morse,  J.  T.,  Jr. :  Abraham  Lincoln,  American  Statesmen  Series, 
chap,  viu ;  "Two  War-Time  Conventions,"  Century  Magazine 
(March,  1875),  XLIX,  723;  White:  Life  of  Lyman  Trumbull,  231; 
Fessenden,  Francis:  Life  and  Public  Services  of  William  Pitt  Fessen- 
den,  n,  77;  Pierce,  E.  L.:  Memoir  and  Letters  of  Charles  Sumner,  iv, 
212;  Welles,  Gideon:  Galaxy,  May,  1872. 


THE  PROBLEM  OF  RESTORATION    189 

had  the  conversation  with  '  Jefferson  Davis,  Benja 
min,  and  Breckinridge/  quoted  in  the  letter  of  your 
correspondent,  and  did  not  inform  the  President 
that  I  had  informed  General  Breckinridge  that  I  did 
not  intend  to  leave  Richmond,  and  I  should  be  glad 
to  have  power  to  confer  at  large  upon  public  affairs, 
but  I  obtained  no  such  authority  to  speak  to  him  on 
behalf  of  any  one.  I  did  urge  on  the  President  the 
adoption  of  a  large,  liberal,  and  magnanimous  policy 
as  best  for  himself  and  those  around  me.  ...  I  did 
recommend  that  he  should  sanction  a  meeting  of  the 
prominent,  influential,  leading  men  in  Virginia  at 
Richmond  and  have  their  counsel  and  cooperation 
in  reconstructing  its  political  system  [so]  as  to  meet 
the  new  and  extraordinary  conditions  of  society. 
But  the  calling  together  of  the  political  body,  the 
'  rebel  legislature/  was  the  suggestion  of  Mr.  Lin 
coln's  own  mind.  He  mentioned  it  for  the  first  time 
in  our  second  interview  as  a  matter  he  was  consider 
ing  .  .  .  that  it  was  desirable  in  many  points  of 
view,  which  he  mentioned,  and  that  if  he  came  to 
a  satisfactory  conclusion  he  would  make  it  known 
to  General  Weitzel  on  his  return  to  City  Point,  by 
letter. 

"The  general  principles  I  had  expressed  included 
such  a  proposition,  and  I  was  gratified  that  the 
President  had  been  led  to  its  consideration,  but  I  did 
not  intimate  such  a  course  in  any  remarks  of  mine, 
before  he  suggested  it. 

"At  the  interviews  on  the  Malvern,  President 
Lincoln  produced  a  memorandum  in  writing  which 
he  read  over,  and  commented  on  the  various  clauses 


190      JOHN  ARCHIBALD  CAMPBELL 

as  he  read  them.  When  he  had  concluded  he  gave  me 
the  paper.  It  was  not  dated,  signed,  nor  addressed. 
The  conversation  reported  by  your  correspondent 
did  not  take  place.  .  .  .  My  intercourse  with  Presi 
dent  Lincoln  both  here  and  at  Hampton  Roads  im 
pressed  me  favorably  and  kindly  to  him.  I  believe 
that  he  felt  a  genuine  sympathy  for  the  bereave 
ment,  destitution,  impoverishment,  waste,  and  over 
turn  that  war  had  occasioned  at  the  South,  and  that 
he  fully  and  exactly  discriminated  the  wide  differ 
ence  both  in  reason  and  policy  between  the  modes  of 
proceeding  in  reference  to  the  disorderly  or  criminal 
acts  of  individuals  which  disturb  the  security  of  a 
State  and  those  civil  dissensions  and  commotions 
which  arise  from  the  agitation  of  great  questions 
which  involve  the  social  and  political  constitution 
of  a  great  empire  composed  of  distinct  and,  in  some 
respects,  independent  communities. 

"I  believe  that  his  scheme  of  pacification  would 
have  gone  as  far  to  the  mitigation  of  the  evils  that 
have  befallen  the  country  as  the  circumstances 
allowed  of. 

"My  direct  intercourse  with  President  Lincoln 
terminated  with  my  visit  to  him  on  the  Malvern.  I 
never  spoke  to  him  or  wrote  to  him  afterwards. 

"The  following  day  General  Weitzel  sent  for  me 
and  read  the  letter  of  President  Lincoln  to  him  upon 
the  subject  of  calling  together  the  Virginia  Legisla 
ture. 

"Mr.  Lincoln  in  the  course  of  his  conversation  had 
expressed  his  object  in  desiring  them  to  meet  and  to 
vote.  It  was  desirable  that  that  very  Legislature 


THE  PROBLEM  OF  RESTORATION    191 

should  recognize  the  National  authority.  It  was  in 
the  situation  of  a  tenant,  between  two  contesting 
landlords,  who  was  called  to  attorn  to  the  one  who 
had  shown  the  better  title,  was  his  remark.  .  .  .  The 
Legislature  of  North  Carolina  was  prepared  to  act 
upon  the  propositions  of  peace.  My  friend  Gov 
ernor  Graham  had  been  prepared  to  advise  Mr. 
Davis  to  send  the  commissioners  who  had  conferred 
with  Mr.  Lincoln  at  Hampton  Roads,  to  Washing 
ton  to  accept  his  terms  and  to  settle  the  remaining 
conditions.  This  advice  being  unavailing,  he  was 
prepared  to  counsel  State  action. 

"  General  Weitzel  invited  from  me  a  letter  on  the 
subject.  This  letter  referred  to  the  military  condi 
tion  of  the  country.  It  admitted  that  the  great  natu 
ral  and  artificial  channels  of  communication  and 
avenues  and  emporiums  of  commerce  and  inter 
course  were  within  the  control  of  the  United  States, 
but  that  the  spirit  of  the  people  in  the  South  was  not 
broken  and  that  a  prolonged  and  embarrassing  war 
might  still  be  continued;  that  it  was  desirable  to 
prevent  this  and  the  province  of  statesmanship  to 
avoid  it.  My  counsel  was  to  facilitate  the  meetings 
of  these  legislatures  to  bring  the  minds  of  the  people 
to  consider  of  peace.  The  impediments  to  the  settle 
ment  were  the  continuance  of  hostilities  and  the  fact 
that  the  agencies  of  the  Confederate  States  were  in 
disposed  to  negotiations.  Hence  the  necessity  to  call 
upon  the  Legislature  and  suspend  hostilities.  This 
letter  was  written  in  advance  of  the  surrender  of  the 
army  of  General  Lee  and  with  the  sincere  purpose  of 
stopping  the  war.  I  had  a  very  strong  impression 


192      JOHN  ARCHIBALD  CAMPBELL 

that  the  evacuation  of  Richmond  and  Petersburg 
would  lead  to  the  disbanding  of  that  army  without 
any  effort  on  the  part  of  its  adversary.  There  is  no 
sentence  in  that  letter  such  as  your  correspondent 
quotes.  There  was  no  spirit,  as  he  represents,  to  dic 
tate.  This  letter  was  probably  sent  to  President 
Lincoln,  but  it  was  not  addressed  to  or  for  him.  .  .  . 
I  have  found  it  to  be  proper  to  deny  the  accuracy  of 
your  correspondent's  history  in  a  Richmond  paper, 
and  I  think  it  to  be  due  to  you  to  explain  the  signifi 
cance  of  my  denial.  I  do  not  wish  this  letter  pub 
lished.  But  I  earnestly  entreat  of  you  not  to  cease 
your  efforts  to  promote  a  broad,  comprehensive, 
magnanimous  policy  in  the  reconstruction  of  the 
Union." 

The  foregoing  is  endorsed:  "This  letter  was  writ 
ten  at  its  date.  It  was  not  sent  and  found  in  my  desk 
after  my  imprisonment.  It  is  a  record  of  the  time." 

Judge  Campbell  was  arrested  on  the  night  of  May 
7,  1865,  and  imprisoned  at  Fort  Pulaski. 

The  Richmond  incident  had  deeply  offended  cer 
tain  persons  in  authority  in  Washington,  and  Judge 
Campbell  was  marked  for  punishment  and  to  be 
placed  in  such  a  position  that  he  could  not  thereafter 
give  them  trouble  or  interfere  with  their  plans  and 
purposes  in  regard  to  "the  conquered  territories." 
This  is  made  clear,  by  reference  to  a  letter  written 
by  Judge  Campbell  to  R.  M.  T.  Hunter,  October  25, 
1877,  enclosing  a  letter  written  by  him  to  Attorney- 
General  Speed,  August  31,  1865.  This  letter  was 
written  while  Judge  Campbell  was  in  prison  at  Fort 
Pulaski  and  shown  to  Mr.  Hunter,  who  was  also 


THE  PROBLEM  OF  RESTORATION    193 

confined  at  the  fort.  In  his  letter  to  Hunter,  he  says: 
"You  told  me  if  I  sent  it,  I  would  remain  there  for 
life.  I  sent  it,  but  my  family  were  advised  not  to  let 
it  go  forward.7'  In  the  letter  to  Mr.  Speed,  Judge 
Campbell  writes :  "  I  have  a  letter  which  contains  the 
following  sentence,  'It  is  charged  in  substance,  and 
I  understand  with  strong  censure,  that  in  the  call  of 
the  Virginia  Legislature,  you  abused  the  confidence 
of  Mr.  Lincoln,  misrepresenting  his  views  and  prom 
ises  and,  by  perversion,  misled  General  Weitzel  into 
grave  error  of  official  misconduct.  It  is  alleged  that 
you  violated  and  concealed  the  explicit  condition 
laid  down  by  Mr.  Lincoln  that  the  public  men  of 
Virginia  were  to  meet  only  as  individuals  called  to 
gether  for  consultation  and  to  promote  order;  and  it 
is  further  alleged  that  Mr.  Lincoln's  memorandum, 
as  furnished  by  yourself,  supports  the  views  taken  of 
your  conduct.  This  affair  was  stated  to  be  not  the 
sole,  but  a  cogent  motive  of  your  captivity  and  its 
continuance.'  In  reply  to  inquiries  occasioned  by  this 
statement,  I  learn  that  the  Attorney-General  made 
this  statement  to  an  eminent  citizen  of  the  United 
States.  I  hope  that  you  will  pardon  me  for  intruding 
upon  you  a  reply  to  the  charge." 

After  stating  the  circumstances  under  which  he 
met  Mr.  Lincoln  and  the  conversations,  as  set  out  in 
the  letter  to  Mr.  Greeley  and  the  " Recollections," 
Judge  Campbell  says:  "My  suggestion  to  Mr.  Lin 
coln  had  not  extended  to  the  call  of  any  legal  or  po 
litical  body.  I  say  to  you  the  first  suggestion  came 
from  him,  and  in  the  manner  I  state.  .  .  .  The  fol* 
lowing  day  General  Weitzel  sent  for  me  to  read  a 


194      JOHN  ARCHIBALD  CAMPBELL 

letter  from  Mr.  Lincoln.  This  letter  has  been  pub 
lished.  I  understood  that  letter  to  authorize  a  call 
for  the  Virginia  Legislature  to  come  to  Richmond, 
to  vote  upon  the  restoration  of  Virginia  to  the 
Union,  and  to  perform  any  other  legal  acts  in  har 
mony  with  the  policy  of  peace  and  union.  ...  I 
asked  General  Weitzel  if  others  than  the  members  of 
the  Legislature  would  be  allowed  to  go  to  Rich 
mond.  He  answered  yes,  and  he  would  afford  trans 
portation  and  facilities  to  them.  ...  I  wrote  a  letter 
to  General  J.  R.  Anderson,  explaining  what  I  had 
done,  read  it  to  General  Shepley  in  presence  of  Mr. 
Dana,  Assistant  Secretary  of  War,  and  left  the  origi 
nal  to  be  copied  in  that  office.  No  objection  was 
made  to  this  letter.  The  letter  convening  the  Legis 
lature  was  examined  by  General  Shepley  and  cor 
rected  by  him.  His  corrections  were  assented  to  and 
the  letter  went  forth  in  the  form  he  agreed  to." 

After  a  full  account  of  every  step  taken  by  him, 
Judge  Campbell  concludes:  "My  entire  action  and 
interference  has  now  been  stated.  You  will  see  that 
I  neither  misunderstood  nor  misrepresented  Mr. 
Lincoln  as  stated.  Mr.  Lincoln  desired  the  Legisla 
ture  of  Virginia  to  be  called  together  to  ascertain 
and  to  test  its  disposition  to  cooperate  with  him  in 
terminating  the  war.  He  desired  it  to  recall  the 
troops  of  Virginia  from  the  Confederate  service  and 
to  attorn  to  the  United  States  and  to  submit  to  the 
National  authority.  He  never,  for  a  moment,  spoke 
of  the  Legislature  except  as  a  public  corporate  body, 
representing  a  substantial  portion  of  the  State.  .  .  . 
Mr.  Lincoln  could  not  have  employed  the  language 


THE  PROBLEM  OF  RESTORATION    195 

he  did  in  his  memorandum,  his  letter  to  General 
Weitzel,  or  his  conversation  to  me,  with  such  a 
significance  as  is  attached  to  it  in  the  charge  I  am 
answering.  It  never  entered  into  my  imagination  to 
conceive  that  he  used  the  word  '  legislature '  to  ex 
press  a  convention  of  individuals,  having  no  public 
significance  or  relations.  ...  I  had  no  motive  for 
concealment  nor  interest  in  abusing  Mr.  Lincoln's 
confidence.  ...  I  did  not  mislead  General  Weitzel. 
He  heard  every  word  that  Mr.  Lincoln  spoke  to  me, 
and  Mr.  Lincoln  wrote  him  and  not  to  myself.  He 
had  intercourse  with  Mr.  Lincoln,  to  which  I  was 
not  a  party.  There  was  no  explicit  condition  in  Mr. 
Lincoln's  letter  to  General  Weitzel.  Mr.  Lincoln 
authorized  him  to  allow  a  call  for  the  Legislature 
and  to  exhibit  to  me  his  letter.  The  Legislature  was 
to  act  loyally  after  it  met  and,  if  not,  to  be  dis 
persed.  That  was  all.  The  memorandum  furnished  to 
me  only  strengthened  the  conclusion  that  the  Legis 
lature  was  to  be  convened  as  a  public  corporate 
body.  The  pledge  was  if  any  State  would  abandon 
the  contest  and  withdraw  its  troops  that  confisca 
tion  would  be  discharged.  How  was  a  State  to  com 
ply  except  through  its  authorities?  Mr.  L.  wanted 
prompt,  efficient  action  to  terminate  a  ruinous  war, 
and  we  must  infer  that  he  expected  the  usual  means 
for  the  purpose,  and  besides  this  he  designated  the 
Legislature  as  the  appropriate  instrument  to  be  em 
ployed.  My  wishes  were  consistent  with  Mr.  Lin 
coln's.  I  desired  peace  for  a  ruined,  distressed  peo 
ple.  I  did  not  suggest  benefits  for  myself.  I  did  not 
importune  amnesty  or  preferment.  ...  It  was  for 


196      JOHN  ARCHIBALD  CAMPBELL 

the  people  that  I  made  intercession.  I  counseled  the 
conqueror  to  use  magnanimity,  forbearance,  kind 
ness  for  his  own  honor  and  advantage,  not  specially 
for  mine.  I  asked  no  boon  for  myself.  ...  I  appeal  to 
your  sense  of  right,  in  reference  to  this  grave  accusa 
tion,  and  ask  you  to  give  me  the  evidence  upon 
which  such  charges  and  assertions  depend.  I  have 
not  complained  of  Mr.  Lincoln's  alteration  of  his 
policy,  nor  of  the  order  revoking  the  call  of  the  Vir 
ginia  Legislature.  General  Ord  assigned  to  me,  as 
the  cause  of  the  change  of  the  order,  the  change 
which  events  had  made  in  the  condition  of  affairs. 
The  change  was  great  [General  Lee's  surrender, 
April  9,  1865],  and  Mr.  Lincoln  had  contracted  no 
debt  by  any  promise  or  declaration  to  me  which  for 
bade  a  change  in  his  policy.  I  held  no  commission 
nor  power  to  bind  any  one.  .  .  .  But  I  have  a  right 
to  be  exempt  from  all  unjust  censure  and  from  all 
misrepresentation  of  my  connection  with  these 
events  and  from  all  unjust  accusations." 

One  of  these  letters  was  written  within  a  month, 
and  the  other  within  four  months,  of  the  time  that 
the  transaction  occurred.  It  is  only  necessary  to 
refer  to  the  history  of  the  time,  and  the  conditions 
created  by  the  struggle  being  carried  on  for  suprem 
acy  by  those  members  of  Johnson's  Cabinet  and 
their  Congressional  associates,  to  carry  into  effect 
Lincoln's  plans,  and  those  who,  with  Sumner,  Stan- 
ton,  and  Stevens,  were  determined  to  treat  the 
Southern  States  as  " suicides"  and  " conquered 
provinces,"  and  their  people  as  "  traitors,"  to  under 
stand  why  Judge  Campbell's  family  and  friends  did 


THE  PROBLEM  OF  RESTORATION    197 

not  think  it  " prudent"  to  permit  the  letters  to  be 
delivered  to  those  to  whom  they  were  addressed. 

Judge  Campbell's  interpretation  of  Mr.  Lincoln's 
plan  to  secure  peace  and  restore  the  Southern  States 
to  their  relation  to  the  Union,  in  so  far  as  it  was 
within  the  power  of  the  Executive  Department  to 
do  so,  is  sustained  by  reference  to  the  instructions 
given  by  Mr.  Lincoln  to  General  Sherman  at  City 
Point,  March  27, 1865,  in  regard  to  the  course  which 
he  should  pursue  upon  reaching  Raleigh,  North 
Carolina,  and  the  letters  addressed  by  General  Sher 
man  to  Governor  Vance,  April  12,  1865. x 

Mr.  Rhodes,  referring  to  the  incident,  says  that 
"it  has  larger  and  more  permanent  interest"  than 
Judge  Campbell's  personal  relation  to  it  because  of 
"its  bearings  on  the  after  history  of  the  opposition 
of  the  radical  Republicans  to  any  such  mode  of  re 
construction."  2 

Judge  Campbell  in  this  letter  says  that  Stanton 
had  some  time  prior  to  that  date  told  Mrs.  Campbell 
that  the  cause  of  his  arrest  was  his  endorsement  on 
a  letter  from  a  man  by  the  name  of  Alston  to  Mr. 
Davis,  in  which  Alston  proposed  to  assassinate  Mr. 
Lincoln  and  other  Union  leaders  and  requested  an 
interview  for  the  purpose  of  unfolding  his  plan.  Of 
this  incident  Judge  Campbell  said:  "In  regular 
course  of  the  routine  of  the  office  I  had  referred  it  to 

1  Z.  B.  Vance  Papers,  Collections  of  North  Carolina  Historical 
Commission;  Spencer:  Last  Ninety  Days  of  the  War  in  North  Caro 
lina,  chap,  xi,  145;  McClure:  Abraham  Lincoln  and  Men  of  War- 
Times,  221;  Sherman's  Memoirs;  McCall,  S.  W.:  Thaddeus  Stevens, 
American  Statesmen  Series,  239. 

2  Rhodes:  History  of  the  United  States,  134. 


198      JOHN  ARCHIBALD  CAMPBELL 

the  Adjutant-General  'for  attention/  it  being  his 
duty  to  examine  and  dispose  of  letters  between 
parties.  My  own  statement  and  that  of  General 
Cooper,  Adjutant-General,  and  four  of  his  assist 
ants,  have  been  filed  with  my  application  for  am 
nesty,  to  show  that  this  endorsement  was  no  cause 
whatever  to  subject  me  to  death  or  bonds."  His  ar 
rest  was  made  at  night,  without  any  notice  or  means 
to  answer  or  explain. 

On  August  1,  1865,  while  Judge  Campbell  was 
imprisoned  at  Fort  Pulaski,  without  his  knowledge 
Judge  Benjamin  R.  Curtis  wrote  from  his  home  at 
Pittsfield,  Massachusetts,  to  President  Johnson: 

"I  address  you  respecting  Mr.  John  A.  Campbell, 
with  whom  I  sat  on  the  Bench  of  the  Supreme  Court, 
and  who  is  now  a  prisoner  in  Fort  Pulaski.  Though 
my  intercourse  with  Judge  Campbell  ceased  with 
my  retirement  from  the  Bench,  I  have  retained  a 
strong  regard  for  him,  founded  on  his  purity  and 
strength  of  character,  his  intellectual  power,  his 
great  attainments,  and  his  humane  and  genial  na 
ture.  .  .  .  Judge  Campbell,  as  you,  I  believe,  know, 
was  not  only  clear  of  all  connection  with  the  con 
spiracy  to  destroy  the  Government,  but  incurred 
great  odium  in  the  South,  especially  in  his  own 
State,  by  his  opposition  to  it,  and  by  his  views  of  the 
power  and  intention  of  the  Government  and  the  fal 
lacy  of  the  ideas  upon  which  the  attempted  revolu 
tion  was  based.  I  can  conceive  that  reasons  may 
exist,  apart  from  the  merits  of  his  own  case,  why  he 
should  not  receive  a  pardon  at  the  present  time,  and 
as  that  subject  has  recently  been  under  your  con- 


THE  PROBLEM  OF  RESTORATION    199 

sideration,  I  desire  to  say  nothing  concerning  it,  but 
I  venture  respectfully  to  ask  your  attention  to  the 
question  whether  his  release  on  parole,  with  such 
limitations  as  you  may  think  needful,  would  not 
promote  the  public  interest.  From  his  former  posi 
tion,  his  opposition  to  counsels  which  have  proven 
so  disastrous,  his  known  devotion  to  the  interests  of 
the  Southern  people,  his  ability  and  his  weight  of 
character,  he  can  undoubtedly  exert  an  important 
influence  over  Southern  opinion;  and  if,  as  I  am  con 
vinced,  that  influence  will  be  used  to  promote  the 
pacification  of  the  country,  and  the  conciliation  of 
Southern  opinion  to  the  necessities  of  their  condi 
tion,  and  the  just  demands  of  the  Union,  it  cannot 
fail  to  be  useful  in  an  important  degree.  At  present 
his  influence  for  good  is  paralyzed,  and  his  imprison 
ment  is,  in  effect,  a  continual  and  conspicuous  repre 
sentation  to  the  people  of  the  South  that  he  is  hos 
tile  to  the  Government  and  desires  to  obstruct  its 
measures.  I  believe  this  is  unjust  to  him  and  unfav 
orable  to  the  prevalence  of  those  feelings  and  opin 
ions  which  you  desire  to  promote." 

Judge  Campbell,  upon  learning  of  this  generous  act 
on  the  part  of  Judge  Curtis,  wrote  him  a  letter,  which 
was  published  in  the  Century  Magazine,  October, 
1889.1  Judge  Nelson  also  wrote  to  President  Johnson. 

Some  time  after  the  receipt  of  these  letters,  the 
President,  by  an  executive  order,  released  Judge 
Campbell  from  imprisonment.  He  resumed  the 
practice  of  his  profession  at  New  Orleans  and  never 
again  held  public  office. 

1  Vol.  xxxvin,  No.  3,  950. 


200      JOHN  ARCHIBALD  CAMPBELL 

At  this  time  he  gave  expression  to  his  views  re 
garding  the  results  of  the  war,  its  effect  upon  the 
South,  and  his  outlook  for  the  future,  saying:  "I 
concur  in  the  policy  of  abolishing  negro  slavery 
throughout  the  United  States.  I  regard  the  revolu 
tion  as  the  most  radical  and  momentous  that  has 
ever  occurred  in  any  country.  Much  of  the  burden 
will  fall  upon  the  people  in  the  Confederate  States 
(so  called).  It  changes  the  conditions  as  to  nearly 
all,  as  to  future  and  temporal  prosperity.  It  requires 
for  its  success  wisdom,  prudence,  patience,  and  pa 
triotism.  I  venture  to  suggest  that  it  also  requires 
profound  quiet  and  sense  of  security.  This  change 
in  the  conditions  of  men  and  of  a  country  affords  a 
fruitful  lesson  to  this  generation  and  posterity,  and 
this  lesson  cannot  be  enforced  by  confiscations  or 
criminal  prosecutions.  It  seems  to  me  that  the  les 
sons  that  Mr.  Burke  has  taught  in  his  speech  on 
1  Reconciliation  in  America '  and  his  tract  on  'The 
Policy  of  the  Allies'  will  find  an  application  to  the 
circumstances  of  this  case.  For  myself,  I  can  say 
that,  in  the  trying  condition  in  which  I  have  been 
placed,  I  have  endeavored  to  perform  my  duty.  I 
have  not,  at  all  times,  satisfied  myself.  I  have  failed 
in  satisfying  others.  My  friends  in  the  beginning  of 
the  war  bestowed  on  me  obloquy  and  reproach,  and 
violent  men  threatened  contumacious  treatment.  I 
was  an  alien  among  them.  They  have  repented  and 
are  now  ready  to  hail  me  as  their  friend.  I  have  en 
dured  reproach  then  and  more  latterly  because  I 
was  ready  for  reconstruction  when  others  were  for 
war  to  the  knife." 


THE  PROBLEM  OF  RESTORATION    201 

Judge  Campbell's  property  in  Mobile,  upon  which 
he  depended  for  the  support  of  his  family,  had  been 
destroyed.  In  these  days  of  restored  National  unity 
and  general  prosperity,  it  is  difficult  to  understand 
or  estimate  the  burdens  which  in  1865  bore  upon 
men  past  middle  life,  broken  in  fortune,  deprived  of 
the  rights  of  citizenship,  confronting  a  future  filled 
with  uncertainty,  or  the  depressing  conditions  un 
der  which  they  began  the  work  of  restoration  and 
rebuilding.  It  behooves  the  people  of  the  South  to 
teach  not  only  their  own  children,  but  also  those  of 
the  North  and  West,  the  hearts  of  whose  fathers 
were  in  those  days  filled  with  the  pride  of  military 
success  and  passion  engendered  by  political  and  sec 
tional  controversies,  of  the  courage,  fortitude  and 
patience  of  the  men  of  the  South  of  1865.  But  for 
them,  their  courage,  their  steadfastness  of  purpose, 
and  their  precept  and  example,  the  temporary  suc 
cess  of  those  who  sought  to  perpetuate  the  passions 
of  the  Civil  War  and  the  domination  of  a  sectional 
party  would  have  indefinitely  postponed  peace  and 
national  unity.  It  is  but  justice  to  honor  the  mem 
ory  of  those  men.  It  is  neither  necessary  nor  relevant 
to  their  vindication  to  enter  into  controversy  re 
garding  the  motives  or  wisdom  of  those  who  sought 
to  "  drive  them  out  of  the  country,"  and  who  in 
sisted  that  they  should  "have  no  participation 
whatever  in  the  business  of  reorganization  of  the 
States."  Happily,  in  both  North  and  South  there 
remained  a  remnant  who  saw  their  duty  clearly  and 
had  the  moral  and  political  courage  to  walk  in  the 
light  of  a  clearer  vision  and  larger  hope.  They  and 


202      JOHN  ARCHIBALD  CAMPBELL 

those  who  differed  from  them  have  passed  away; 
the  record  which  they  made  constitutes  the  evidence 
upon  which  the  judgment  of  impartial  history  must 
be  rendered.  The  jury  which  time  empanels  will  do 
them  justice,  and  from  this  verdict  and  judgment 
those  who  hold  in  sacred  keeping  the  fair  name  and 
character  of  Judge  Campbell  will  have  no  cause  to 
appeal.  In  the  words  of  a  wise,  patient,  and  patriotic 
man  of  the  South  of  those  days: 

"It  all  seems  clear  enough  to  us  now.  We  look 
back  along  the  way  we  have  come,  and  we  do  not 
now  see  how  we  could  have  gone  any  other  way.  But 
we  are  forgetting  how  dark  it  was.  Never,  in  all  his 
tory,  did  thicker  darkness  descend  upon  a  people, 
and  so  suddenly.  A  President  had  been  slain;  an 
other,  his  successor,  stood  before  us  impeached,  dis 
trusted,  and  despised  by  those  who  had  placed  him 
in  office.  Our  State  Governments  were  dismantled 
and  our  States  become  military  provinces.  Our 
leading  citizens  were  in  prison  or  their  rights  of  citi 
zenship  denied  them.  Our  emancipated  slaves  were 
appealing  to  us,  as  never  before,  to  care  for  them  in 
their  new  relation  to  us.  Our  wasted  fields  and 
homes  remained  to  us,  only  to  remind  us  of  our 
former  estate  and  our  wretched  poverty.  The  sol 
diers  of  the  blue  and  the  gray  looked  into  each 
other's  faces,  aghast  at  the  ruin  they  had  wrought, 
ready  and  willing  to  be  friends,  while  the  founda 
tions  of  the  Union  shook  beneath  their  feet  with  a 
tremor  more  ominous  than  the  shock  of  battle.  One 
false  step,  and  the  ruined  South  with  blinded  rage 
might  pull  down  the  pillars  of  our  Government  in 


THE  PROBLEM  OF  RESTORATION     203 

the  very  strength  of  its  agony.  We  have  called  these 
dark  days  our  era  of  reconstruction.  History  will  be 
true  if  it  shall  write  above  this  chapter,  as  its  title, 
the  words  of  Thomas  de  Celano's  hymn  of  the  judg 
ment,  'Dies  irce,  dies  ilia.'  .  .  . 

"  These  men  of  the  South  differed  in  their  politi 
cal  creeds  as  the  billows,  but  in  their  sense  of  duty, 
each  to  his  own  State,  they  were  one  as  the  sea.  .  .  . 
Their  struggle  has  ended.  Let  us  believe  and  be 
thankful  that  in  the  providence  of  God  it  has  ended 
well  and  with  honor  and  good  to  us  all. 

"  And  so,  too,  has  ended  our  era  of  reconstruction. 
We  have  rebuilt  our  Union,  and  we  pray  that,  when 
the  rain  descends,  and  the  floods  come,  and  the 
winds  blow  and  beat  upon  it,  it  may  not  fall,  for  it 
is  founded  upon  a  rock.  Slavery  no  longer  mars  our 
structure."  1 

1  Mason,  Thomas  W. :  The  Value  of  Historical  Memorials  in  a 
Democratic  State.  Publications  of  the  North  Carolina  Historical 
Commission,  Bulletin  No.  7,  pp.  85,  88. 


CHAPTER  VIII 

THE  SLAUGHTER-HOUSE  CASES  AND  THE 
FOURTEENTH   AMENDMENT 

AN  understanding  of  the  conditions  under  which 
Judge  Campbell  entered  upon  the  last  and  most 
fruitful  years  of  his  life  requires  a  reference  to  the 
situation  with  which  he  was  confronted  when  re 
leased  from  Fort  Pulaski.  As  we  have  seen,  his  ef 
forts  to  save  from  the  fate  which  he  saw  impending 
the  people  to  whom,  by  birth,  association,  and  the 
most  sacred  ties  of  social  and  political  relationship, 
he  was  attached,  met  with  failure,  his  conduct  was 
misrepresented,  and  his  motives  misconstrued,  re 
sulting  in  imprisonment.  Bereft  of  such  estate  as  he 
had  accumulated  by  his  labor  prior  to  the  war,  dis 
franchised  and  in  his  professional  labors  restricted 
to  the  State  courts,  the  only  resource  left  for  pro 
viding  for  his  family,  his  moral  courage  and  sense 
of  rectitude  of  purpose  enabled  him  to  await  with 
patience  the  coming  of  a  brighter  day  and  a  larger 
opportunity  for  service. 

Justice  McLean,  upon  learning  that  Justice  Curtis 
contemplated  resigning,  strongly  urged  him  to  re 
main  on  the  Bench,  suggesting  that  he  "  would  feel 
a  little  awkward  at  the  Bar."  Since  the  departure 
by  the  States  from  judicial  life  tenure,  many  judges 
have  retired  from  the  Bench  and  met  with  large 
success,  adding  to  their  reputation  and  financial  re 
wards,  at  the  Bar.  It  is,  however,  usually  uncertain 


THE  FOURTEENTH  AMENDMENT    205 

whether  judicial  life  and  labor  do  not  weaken  the 
taste  and  lessen  the  capacity  for  professional  work, 
especially  in  the  trial  of  causes  before  courts  and 
juries.  The  condition  under  which  Judge  Campbell 
retired  from  the  Bench,  and  the  future  which  ap 
peared  to  confront  him,  were  depressing  and,  at  the 
age  which  he  had  reached,  discouraging. 

Judge  Curtis  and  Judge  Campbell  are  the  only 
American  lawyers  who,  after  service  on  the  Supreme 
Court  Bench  of  the  United  States,  have  returned  to 
the  practice  of  their  professions.  Of  them  Mr.  Car 
son  says:  "It  is  a  matter  of  satisfaction  to  record 
that  the  influence  of  Curtis  and  Campbell  upon  the 
Bench  which  they  quitted  was  not  lost,  as  in  after 
years  no  men  appeared  at  the  Bar  whose  arguments 
made  a  profounder  impression."  *  By  those  familiar 
with  their  careers  it  was  thought  that  they  did  the 
best  work  of  their  professional  lives  after  they  re 
turned  to  the  Bar. 

Mr.  William  A.  Maury  said  of  them:  "It  was  a 
great  loss  to  the  Supreme  Court  when  Judge  Camp 
bell  and  Judge  Curtis  left  it.  They  were,  to  some  ex 
tent,  the  complements  of  one  another,  somewhat  as 
Marshall  and  Story  were,  and,  of  course,  no  Court 
could  lose  so  much  mental  vigor  and  learning  as 
they  represented,  without  feeling  deeply  the  dep 
rivation.  It  may  be  said  that  both  these  Judges  did 
the  best  work  of  their  professional  lives  after  they 
returned  to  the  Bar.  This  was  certainly  true  of 
Judge  Campbell.7' 2 

1  Carson,  H.  L. :  History  of  the  Supreme  Court,  350. 

2  Memorial  Addresses  —  Justice  Campbell,  8. 


206        JOHN  ARCHIBALD  CAMPBELL 

Judge  Curtis's  biographer  has  given  a  valuable 
and  interesting  record  of  the  professional  labors  of 
his  distinguished  brother.  The  second  volume  of  the 
" Memoir"  contains  a  collection  of  his  professional 
arguments  and  public  addresses.  From  the  "  Opinion 
Books/7  kept  by  Judge  Curtis,  are  selected  a  num 
ber  of  his  " opinions"  given  to  clients  upon  questions 
of  constitutional,  corporation,  and  commercial  law. 
The  author  gives  a  list  of  the  cases  which  he  argued 
subsequent  to  his  resignation  in  the  Supreme  Courts 
of  Massachusetts  and  of  the  United  States,  and  the 
questions  presented.  Unfortunately,  Judge  Camp 
bell  left  no  record  of  his  professional  labors  other 
than  several  volumes  of  briefs  and  arguments.  From 
these  we  are  enabled  to  form  an  estimate  of  the 
character  and  extent  of  his  work  during  the  last 
twenty  years  of  his  life. 

Seeing  in  the  city  of  New  Orleans  a  larger  oppor 
tunity  for  success  than  in  Mobile,  in  the  discharge 
of  the  duties  which  he  owed  to  those  dependent 
upon  him  during  the  last  days  of  1865,  he  made  his 
home  there.  By  reason  of  its  commercial  impor 
tance,  the  changes  of  its  social,  industrial,  and  com 
mercial  life,  wrought  by  the  war  and  its  results,  and 
the  certainty  of  its  growth  and  development,  New 
Orleans  offered,  perhaps,  the  most  attractive  field 
for  the  practice  of  law  in  the  South.  Many  questions 
novel  in  character,  important  in  respect  to  the 
interests  involved,  and  difficult  of  solution,  were 
sure  to  arise  in  the  readjustment  following  the  Civil 
War. 

Judge    Campbell    was   warmly   welcomed    and 


THE  FOURTEENTH  AMENDMENT    207 

promptly  took  his  position  among  those  in  the  front 
ranks  of  the  profession.  Mr.  Carleton  Hunt,  of  the 
New  Orleans  Bar,  says  of  Judge  Campbell's  career: 
"  Coming  to  the  practice  of  the  Bar  of  New  Orleans, 
he  threw  himself  into  the  contests  in  which  he  be 
came  engaged,  with  a  degree  of  intensity  which  it  is 
difficult  to  express.  He  became  absorbed  in  his  pro 
fessional  undertakings.  He  would  sit  for  hours  in  his 
great  library  lost  in  thought,  without  turning  the 
leaves  of  the  volume  before  him.  At  other  times, 
he  would  walk  in  the  streets  gesticulating,  as  he 
went,  to  the  surprise  of  all  who  passed  him.  He 
spoke  in  Court  customarily  from  the  many  books 
spread  out  before  him.  His  language  seemed  to  be 
borrowed  from  the  books  and  was  apt  to  be  techni 
cal  and  quaint,  as  the  authorities  themselves.  His 
style,  for  the  most  part,  was  measured  and  grave,  as 
became  his  years  and  standing  at  the  Bar.  From 
time  to  time,  however,  as  he  caught  fire  from  the 
concussion  of  debate,  he  became  inflamed  and  fierce 
in  his  assaults  upon  his  adversary's  side.  There  were 
occasions,  seldom  coming,  but  full  of  excitement  as 
they  arrived,  when  his  utterances  were  filled  with  a 
degree  of  eloquence,  which  aroused  in  those  who 
knew  him  like  feelings  and  passions  with  those  with 
whom  the  speaker  contended." 

He  formed  a  partnership  with  Judge  Henry  M. 
Spofford,  formerly  of  the  Supreme  Court  of  Louisi 
ana,  and  his  son,  Duncan  G.  Campbell.  The  firm 
immediately  entered  upon  a  large  practice.  Judge 
Campbell,  by  reason  of  his  long  experience  at  the 
Bar  prior  to  the  war,  and  the  reputation  which  he 


208        JOHN  ARCHIBALD  CAMPBELL 

had  made  on  the  Bench,  was  retained  in  many  novel 
and  interesting  cases.  It  was  not  until  after  the  de 
cision  in  Ex  parte  Garland  1  that  Southern  lawyers 
were  permitted  to  practice  in  the  Federal  Courts. 
The  first  appearance  which  he  had  in  the  Supreme 
Court  of  the  United  States  was  Waring  vs.  The 
Mayor,2  and  associated  cases,  on  writs  of  error  from 
the  Supreme  Court  of  Alabama.  The  cases  involved 
the  validity  of  a  tax  levied  by  the  State  and  the  city 
upon  merchandise  brought  into  the  city  of  Mobile 
from  other  States  and  from  foreign  countries;  sev 
eral  interesting  questions  presenting  the  much-de 
bated  right  of  the  State  to  tax  imports.  The  Court 
held,  Justice  Nelson  dissenting,  that  the  laws  were 
valid.  In  the  " Tonnage  cases"  3  he  successfully  at 
tacked  the  statute  of  Alabama,  levying  a  tonnage 
tax  on  steamboats  and  vessels  navigating  the  rivers 
of  the  State,  as  violating  the  constitutional  provi 
sions  prohibiting  any  State  from  laying  any  duty  of 
tonnage. 

Judge  Campbell  did  not  appear  in  other  cases  of 
unusual  public  interest  in  the  Supreme  Court  until 
the  December  Term,  1872,  when  he  argued  the 
famous  Slaughter-House  cases,  presenting,  for  the 
first  time,  the  construction  of  the  Fourteenth 
Amendment.  The  cases  presented  several  interest 
ing  questions,  and  the  argument  and  decision  have 
had  a  permanent  and  far-reaching  influence  upon 
the  National  jurisprudence.  They  were  submitted 
to  the  Court  upon  the  following  facts : 

1  4  Wall.  333  (December  Term,  1866). 

*  8  Wall.  110.  '  12  Wall.  204. 


THE  FOURTEENTH  AMENDMENT    209 

"The  legislature  of  Louisiana,  during  the  year 
1869,  enacted  a  statute  entitled:  'An  Act  to  Protect 
the  Health  of  the  City  of  New  Orleans,  to  Locate 
Stock-Landings  and  Slaughter-Houses/  incorporat 
ing  the  Crescent  City  Live-Stock  and  Slaughter- 
House  Company. "  The  charter  conferred  upon  the 
corporation,  composed  of  seventeen  persons,  for 
twenty-five  years  the  exclusive  right  to  establish 
and  maintain  within  the  city  and  parish  of  New  Or 
leans  and  the  parishes  of  Jefferson  and  St.  Bernard, 
comprising  1154  square  miles,  containing  more  than 
three  hundred  thousand  persons,  stock-landings, 
yards,  wharves,  stables,  slaughter-houses,  abattoirs, 
and  other  buildings  for  landing  and  keeping  horses, 
mules,  and  other  animals  for  sale  and  for  slaughter 
ing,  charging  therefor  such  fees  as  were  fixed  by  the 
charter.  All  other  persons  living  within  the  city  of 
New  Orleans  and  parishes  named,  were  prohibited, 
under  heavy  penalties,  from  landing,  keeping,  or 
slaughtering  any  animals  at  any  other  places  than 
those  established  by  the  corporation.  More  than  one 
thousand  persons  within  the  district  were  engaged 
in  buying  and  selling  stock,  animals,  and  cattle,  and 
more  than  three  hundred  were  engaged  in  slaugh 
tering  for  market  and  selling  animals  and  cattle. 
The  latter  had  organized  the  "  Benevolent  Butch 
ers'  Association/' 

The  Attorney-General  of  Louisiana,  in  behalf  of 
the  State,  filed  a  bill  in  the  State  Court  for  the  pur 
pose  of  enjoining  the  defendants,  engaged  in  the 
business  of  slaughtering  animals  for  market,  from 
prosecuting  their  business  within  the  prohibited 


210        JOHN  ARCHIBALD  CAMPBELL 

territory  or  doing  any  other  acts  prohibited  by  the 
statute.  The  Benevolent  Butchers'  Association  also 
filed  a  bill  to  enjoin  the  Crescent  City  Live- Stock 
Association  from  enforcing  the  provisions  of  the 
statute. 

For  the  corporation,  the  case  was  argued  in  the 
State  Supreme  Court  by  Randell  Hunt,  Professor  of 
Civil  Law  in  the  State  University,  William  H.  Hunt, 
later  Secretary  of  the  Navy  and  Judge  of  the  Inter 
national  Court  of  Egypt,  and  Christian  Roselius, 
the  leader  of  the  Civil  Law  Bar  of  Louisiana,  and 
the  Attorney-General  of  the  State.  For  the  Butch 
ers'  Association  and  other  parties,  the  case  was 
argued  by  Fellows  &  Mills,  Cotton  &  Levy,  Camp 
bell,  Spofford  &  Campbell,  and  Edward  Bermudez, 
later  Chief  Justice  of  Louisiana.  The  State  Supreme 
Court  sustained  the  statute  and  rendered  a  decree 
for  the  corporation,  Ludeling,  Chief  Justice,  writing 
the  opinion,  to  which  Justice  Wyly  dissented.1 

In  a  suit  involving  the  same  question  Justice 
Bradley,  sitting  in  the  Circuit  Court,  enjoined  the 
enforcement  of  the  prohibitory  provisions  of  the 
statute.2  Upon  appeal  to  the  United  States  Supreme 
Court  the  causes  were  argued  by  Mr.  J.  Q.  A.  Fel 
lows  and  Judge  Campbell  for  appellants  and  by 
Jeremiah  S.  Black  and  Matthew  H.  Carpenter  for 
appellee. 

The  cases  were  twice  argued.  On  the  first  hearing, 

Judge  Nelson  was  unable  to  be  present,  and  as  the 

Court  was  divided,  a  reargument  before  a  full  bench 

was  ordered.  In  view  of  the  division  of  the  Court  in 

1  22  La.  Ann.  546.  2  1  Woods,  51;  15  Fed.  Cases,  8408. 


THE  FOURTEENTH  AMENDMENT    211 

the  final  disposition  of  the  case,  it  is  probable  that 
the  Justices  were,  upon  the  first  hearing,  evenly 
divided.1 

Judge  Campbell's  argument  has  been  preserved. 
He  rested  it  upon  three  propositions :  That  the  Lou 
isiana  statute  created  a  monopoly;  that  it  imposed 
servitudes  upon  the  people  of  the  district,  and  that 
it  unlawfully  restricted  the  use  of  their  property,  in 
violation  of  the  Thirteenth  Amendment;  that  it  de 
prived  the  citizens  of  the  United  States,  residing 
within  the  district,  of  their  rights,  privileges,  and 
immunities,  thereby  violating  the  provisions  of  the 
Fourteenth  Amendment. 

He  thus  states  the  case,  as  presented  by  the  rec 
ord:  "A  large  body  of  persons,  hundreds  in  number, 
had  been  conducting  a  lawful  business  in  a  lawful 
way,  for  many  years :  they  had  invested  capital  and 
labor,  and  had  acquired  skill,  in  this  useful  business, 
for  their  own  benefit,  the  subsistence  of  their  fami 
lies,  and  the  welfare  of  the  community.  By  a  legisla 
tive  act  these  buildings  and  other  constructions  for 
the  purpose  were  closed.  They  were  deprived  of 
power  to  erect  other  buildings,  or  to  employ  their 
capital,  skill,  and  labor,  with  freedom.  Seventeen 
designated  persons  were  vested  by  the  Legislature 
with  the  sole  and  exclusive  power  to  conduct  and 
carry  on  this  business.  ...  All  persons  must  work 
in  these  abattoirs  or  not  at  all,  in  the  vocation  of 
preparing  meat  for  market.  The  corporation  re 
ceives  a  price  determined  in  its  charter.  In  a  word,  a 
great  monopoly  of  trade  which  has  always  existed 

1  Slaughter-House  Cases,  16  Wall.  36. 


212      JOHN  ARCHIBALD  CAMPBELL 

has  been  granted  to  seventeen  favored  adventurers. 
.  .  .  That  this  was  done  for  the  private  gain  of 
these  seventeen  is  shown  by  the  fact  that  whatever 
has  been  seized  and  obstructed  from  the  members 
of  these  associations  and  these  tradesmen  has  been 
granted  to  this  company  of  seventeen." 

Judge  Campbell  conceded  the  power  of  the  Legis 
lature,  in  the  exercise  of  the  police  power,  to  enact 
reasonable  rules  prescribing  the  places  and  condi 
tions  under  which  stockyards  and  slaughter-houses 
should  be  established  and  maintained.  The  Federal 
questions  were  presented  by  the  contention  that 
the  statute  violated  the  provisions  of  the  Thir 
teenth  and  Fourteenth  Amendments.  The  question 
whether  the  exclusive  privileges  granted  to  the 
Crescent  City  Slaughter-House  Company  by  the 
charter  created  a  monopoly  was  involved  in,  and 
relevant  to,  the  solution  of  the  Federal  questions. 
While  his  principal  and,  as  he  thought,  strongest 
contention  applied  to  the  Fourteenth  Amendment, 
his  argument  upon  the  other  phase  of  the  case  is  in 
teresting  and  forceful.  Beginning  with  an  examina 
tion  of  the  origin  and  history  of  the  clause  in  the 
Ordinance  of  1787  for  the  Government  of  the  North 
West  Territory,  providing  that  there  should  be, 
in  the  Territory,  neither  "  slavery  nor  involuntary 
servitude  otherwise  than  for  the  punishment  of 
crime/'  the  traces  the  history  of  the  incorporation  of 
this  language  into  the  Thirteenth  Amendment.  He 
says  that,  although  no  clause  has  been  the  occasion 
of  so  much  discussion,  he  has  not  been  able  to  find 
any  definition  of  the  language.  He  proceeds  to  an 


THE  FOURTEENTH  AMENDMENT    213 

examination  of  the  various  kinds  and  characters  of 
personal  slavery  in  ancient  and  modern  times, 
reaching  the  conclusion  that  the  terms  "slavery" 
and  " servitude"  are  not  synonymous;  that  the  lat 
ter  includes  a  status  or  burden  upon  persons  and 
property,  differing  from  the  former.  By  the  charter 
of  the  Crescent  City  Live-Stock  Company  every 
man  within  the  three  parishes  was  required,  if  he 
exercised  the  trade  of  preparing  animal  food  for  the 
market,  to  do  it  in  the  houses  of  the  company  and 
not  elsewhere.  Every  man,  if  he  had  a  horse,  mule, 
or  other  animal  for  sale,  and  brought  them  within 
these  parishes,  must  carry  them  to  the  landing- 
places,  yards,  stables,  or  pens  of  the  company. 
These  were  personal  acts  which  the  owners  must 
perform.  The  act,  he  insists,  imposes  a  personal 
servitude. 

Referring  to  the  burdens  imposed  by  the  act  upon 
property  within  the  parishes,  he  says:  "It  strikes 
with  incapacity  every  parcel  of  land  within  these 
parishes  for  a  particular  work,  except  a  certain  por 
tion  which  may  be  used  by  that  corporation.  It  does 
not  set  apart  a  particular  district  of  land  for  the  pur 
pose  of  the  erection  or  support  of  slaughter-houses, 
but  it  strikes  with  incapacity  every  property  for 
that  purpose  which  is  not  owned  by  the  company." 
He  pressed  upon  the  attention  of  the  Court  the 
decision  of  the  French  Court,  that  the  decree  of 
Louis  XVI,  of  1779,  suppressing  banalites,  abolished 
"servitudes"  whereby  the  tenant  was  required  to 
carry  his  wheat  to  the  mill  of  the  seignior.  The  de 
cree  declared  "that  all  rights  of  banalites  of  the  oven, 


214      JOHN  ARCHIBALD  CAMPBELL 

mill,  wine-press,  slaughter-house,  forge,  and  the 
like,  whether  founded  on  custom,  prescription,  or 
judicial  sentence,  should  be  abolished  without  in 
demnity."  He  also  stresses  the  English  Statute  of 
1799  abolishing  thirlage.  After  a  thorough  discus 
sion  of  the  meaning  of  the  term  "  servitude/7  as  used 
in  English  and  Continental  law,  he  cites  American 
State  decisions  to  sustain  his  contention.  Conclud 
ing  this  branch  of  argument,  he  says:  "If  the  Legis 
lature  can  barter  away  to  a  corporation  exclusive 
privileges  and  strike  the  land  with  disabilities,  the 
land  will  soon  become  a  desolation  and  a  waste." 

When  Judge  Campbell  reaches  the  discussion  of 
the  Fourteenth  Amendment,  he  strikes  a  stronger 
note  and  speaks  with  a  larger  degree  of  confidence, 
saying:  "The  Fourteenth  Amendment  embodies  all 
that  the  statesmanship  of  the  country  has  ordained 
for  accommodating  the  Constitution  and  the  insti 
tutions  of  the  country  to  the  vast  additions  of  terri 
tory,  increase  of  the  population,  multiplication  of 
States  and  territorial  governments,  the  annual  in 
flux  of  aliens,  and  the  mighty  changes  produced  by 
revolutionary  events  and  by  social,  industrial,  and 
commercial  development."  With  this  broad  basis 
for  his  argument,  he  observes  that  "whether  the 
Amendment  will  be  esteemed  a  full  and  proper  solu 
tion  of  the  important  problems  presented,  it  is  ap 
parent  that,  by  the  first  clause,  the  National  princi 
ple  has  been  indefinitely  enlarged.  The  tie  between 
the  United  States  and  every  citizen  in  every  part  of 
its  jurisdiction  has  been  made  intimate  and  to  the 
same  extent  the  Confederate  features  of  the  Govern- 


THE  FOURTEENTH  AMENDMENT    215 

ment  have  been  obliterated.  The  States,  with  their 
connection  with  the  citizen,  are  placed  under  the 
oversight  and  enforcing  hand  of  Congress.  The  pur 
pose  is  manifest  to  establish,  through  the  whole 
jurisdiction  of  the  Unit/ed  States,  one  people,  and 
that  every  member  of  the  Empire  shall  understand 
and  appreciate  the  constitutional  fact  that  his  privi 
leges  and  immunities  cannot  be  abridged  by  State 
authority.  .  .  .  Unquestionably  a  very  large  share 
of  blessings  are  stored  and  garnered  here  as  in  a 
common  repository.  Here  is  the  hope  of  the  laboring 
man;  the  confidence  and  trust  of  the  merchant;  the 
stability,  success,  and  profit  of  the  agriculturist;  the 
leisure  and  inspiration  of  the  student,  and  the  peace, 
the  comfort,  the  enjoyment  of  the  family  and  the 
home."  He  assumes  that  "the  Fourteenth  Amend 
ment  was  not  adopted  as  an  act  of  hostility,  nor  de 
signed  to  sow  discord;  nor  to  answer  an  ephemeral 
or  unworthy  purpose.  Those  who  deprive  the  first 
clause  of  its  vitality,  and  demand  an  interpretation 
which  would  leave  the  State  Governments  in  posses 
sion  of  their  powers  over  persons  and  property  un 
impaired,  place  a  stigma  upon  the  authors  of  the 
article.  The  remaining  parts  had  been,  for  the  most 
part,  executed.  They  had  not  produced  wholesome 
results.  The  first  section  remained.  The  command  of 
the  section  to  the  State  Governments  to  maintain 
prescribed  bounds,  and  to  Congress  to  enforce 
obedience  to  the  command,  is  imperative.  The  ex 
cesses  apprehended  were  invasions  of  the  personal 
rights  of  individuals  under  color  of  authority.  Two 
forms  of  invasion  were  apprehended.  The  States 


216      JOHN  ARCHIBALD  CAMPBELL 

might  deny  individual  rights  and  liberties,  and  claim 
to  perform  all  of  the  offices  and  duties  of  society 
under  the  names  of  socialism,  communism,  and 
other  specious  pretenses,  control  all  the  revenues 
and  labors  of  the  State,  or  the  advantages,  benefits, 
partialities,  privileges  of  the  State  might  be  con 
ferred  upon  a  few  to  the  detriment  and  oppression 
of  the  people." 

Campbell  called  attention  to  the  fact  that  the 
corporation  had,  since  the  institution  of  the  suit, 
purchased  the  property  of  one  of  the  defendants, 
"and  are  using  it  for  the  very  purpose  for  which  the 
defendants  are  prohibited  from  acquiring  or  using 
it,  by  this  decree."  He  conceded  the  right  of  the 
State  to  grant  its  public  lands,  establish  public  fer 
ries,  and  appropriate  its  public  revenues,  because 
these  rights  were  vested  in  the  State  for  such  pur 
poses,  but  insisted  that  "  the  rights  of  a  man,  in  his 
person,  to  the  employment  of  his  faculties  and  to  the 
product  of  those  faculties,  do  not  come  to  him  by 
any  concession  of  the  State,  nor  can  he  be  deprived 
of  them  by  any  law  of  the  State.  They  are  his  invio 
lable  prerogative."  He  drew  a  distinction  between 
the  right  of  the  State  to  prohibit  a  person,  in  the  use 
of  these  natural  rights,  to  create  a  nuisance,  con 
taminate  the  atmosphere,  pollute  the  water,  or  sell 
putrid  food,  and  the  power,  asserted  by  the  statute, 
"to  banish  from  three  parishes  an  important  and 
necessary  occupation  which  prevails  in  every  com 
munity,  an  edict  which  inflicts  injury  upon  hun 
dreds  of  individuals  in  their  property  and  their 
business,  and  confers  upon  the  corporation  the  ex- 


THE  FOURTEENTH  AMENDMENT    217 

elusive  right  to  the  enjoyment  of  the  liberties  of 
which  the  people  are  deprived.  That  no  considera 
tion  of  public  health  required  that  what  was  denied 
to  all  should,  under  an  exception,  be  allowed,  as  a 
favor  to  seventeen  persons.  .  .  .  Can  there  be  any 
centralization  more  complete,  or  any  despotism  less 
responsible,  than  that  of  a  State  Legislature  con 
cerning  itself  with  dominating  the  avocations,  pur 
suits,  and  modes  of  labor  of  the  population ;  confer 
ring  monopolies  on  some,  voting  subsidies  to  others, 
restraining  the  freedom  and  independence  of  others, 
and  making  merchandise  of  the  whole?" 

Contending  that  the  statute  created  a  monopoly, 
and  imposed  unjust  and  unequal  burdens  upon  per 
sons  and  property,  he  asks:  "If  an  ordinance  be  un 
reasonable,  if  it  be  unequal,  if  it  be  unjust  because 
of  its  inequality,  does  it  not  fall  within  the  exact  let 
ter  of  the  Fourteenth  Amendment?"  This  inquiry 
suggests  the  larger  one  upon  which  depended  the  ex 
tent  to  which  the  Amendment  had  restricted  the 
power  of  the  States  and  enlarged  the  power  of  the 
National  Government. 

After  an  examination  of  what  he  insisted  were 
the  natural  rights,  the  privileges,  and  immunities  of 
every  American  citizen,  he  quoted  the  language  of 
the  Amendment,  saying:  "If  the  right  of  a  man  to 
choose  and  prosecute  a  lawful  industry  reaches  to 
the  rank  of  a  personal  privilege,  and  his  hopes  and 
expectations  either  of  happiness  or  of  profit  shall  be 
classed  as  property,  then  the  Fourteenth  Amend 
ment  to  the  Constitution  stamps  with  nullity 
the  act  of  the  Legislature  of  Louisiana.  .  .  .  This 


218       JOHN  ARCHIBALD  CAMPBELL 

Amendment  takes  the  child  at  the  moment  of  his 
appearance  in  the  world  and  proclaims  to  the  world 
'he  is  our  citizen';  he  is  endowed,  from  the  very 
moment  of  his  birth  upon  our  soil,  with  privileges 
and  immunities  that  no  State  shall  make  or  en 
force  a  law  to  abridge."  He  repeated  and  empha 
sized  his  contention  that  the  Fourteenth  Amend 
ment  worked  a  radical  change  in  the  relation  which 
every  citizen  of  the  National  Government  bore  to 
that  Government.  By  its  first  clause  fixing  the  status 
of  citizenship  every  person  born  within  the  jurisdic 
tion  of  the  United  States  derives  his  state  and  condi 
tion  from  its  authority.  It  says  to  the  State,  "that 
this  citizen  of  ours  must  not  be  disturbed  in  his 
privileges  and  immunities,  or  in  his  life,  liberty,  or 
property,  brings  the  Government  into  immediate 
contact  with  every  person,  and  gives  to  every  citi 
zen  a  claim  upon  its  protecting  power." 

In  conclusion  he  insisted  that  the  American  peo 
ple  had,  by  their  Constitutions,  secured  freedom: 
"free  action,  free  enterprise,  free  competition.  It 
was  in  freedom  they  expected  to  find  the  best  of 
auspices  for  every  kind  of  human  success.  They  be 
lieved  that  equal  justice,  the  impartial  rewards 
which  encourage  to  effort  in  this  land,  would  pro 
duce  great  and  glorious  results.  They  made  no  pro 
visions  for  sinecures,  pensions,  monopolies,  titles  of 
nobility,  privileges,  orders,  exempting  from  legal 
duty.  What  they  did  provide  for  was  that  there 
should  be  no  oppression,  no  pitiful  exaction  by  petty 
tyranny,  no  spoliation  of  private  right  by  public 
authority,  no  yoke  fixed  on  the  neck  for  work  to 


THE  FOURTEENTH  AMENDMENT    219 

gorge  the  cupidity  and  avarice  of  unprincipled  offi 
cials,  no  sale  of  justice  nor  of  right,  and  there  should 
be  a  fair,  honest,  faithful  government  to  maintain 
what  were  the  unchartered  prerogatives  of  every 
individual  man  and  now  the  constitutional,  inviola 
ble  rights  of  an  American  citizen." 

The  extent  and  variety  of  authority,  judicial  and 
historical,  which  Campbell  brought  to  the  support 
of  his  argument  fully  sustains  Mr.  Maury  in  saying: 
"He  seemed  to  have  levied  a  contribution  on  the 
literature  and  learning  of  the  world  to  show  the  in 
tolerance  of  the  common  law  of  monopolies,  and  to 
furnish  authentic  examples  of  the  almost  infinite  de 
vices  by  which  the  strong  have  in  all  countries  and 
in  all  ages  managed  to  destroy  or  curtail  the  right  of 
every  individual  to  exercise  his  faculties  in  any  way 
that  might  seem  good  in  his  own  eyes,  saving  of 
course  the  rights  of  others."  Justice  Miller  said: 
"The  eminent  and  learned  counsel  who  twice  ar 
gued  the  negative  of  this  question  [against  the  mo 
nopoly]  has  displayed  a  research  into  the  history  of 
monopolies  in  England  and  the  European  Conti 
nent,  equaled  only  by  the  eloquence  by  which  they 
are  denounced." 

Whatever  may  be  thought  of  the  application  of 
the  principles  which  Campbell  made  to  the  case  be 
fore  the  Court,  there  can  be  no  question  of  their 
truth,  the  force  with  which  he  stated  and  the  power 
ful  array  of  learning  with  which  he  supported  them. 
Again  quoting  Mr.  Maury:  "It  is  but  to  look  at  al 
most  any  page  of  the  opinion  of  any  of  the  Judges 
who  spoke  on  that  occasion,  to  see  what  a  profound 


220      JOHN  ARCHIBALD  CAMPBELL 

impression  was  made  by  the  great  advocate  battling 
against  the  stupendous  monopoly  that  had  grasped 
the  insidious  power  to  compel  every  man  within  a 
large  area  of  country  who  had  a  beast  to  slaughter 
for  food  to  come  to  its  slaughter-house  to  do  his 
butchering.  .  .  .  When  we  look  at  the  reach  and  ex 
tent  of  the  research  and  learning  displayed  by  Judge 
Campbell  in  that  case,  it  may  well  be  asked  if  ever 
that  great  Court  in  all  of  its  history  had  witnessed 
at  its  bar,  in  any  previous  case,  more  if  so  much 
learning." 

It  is  a  source  of  regret  that  the  arguments  of 
Campbell's  great  antagonists  in  this  battle  of  giants, 
Jeremiah  S.  Black  and  Matthew  H.  Carpenter,  are 
not  preserved. 

The  Fourteenth  Amendment  was  proposed  to  the 
States  on  January  14,  1866,  and,  on  July  21,  1868, 
was  declared  to  have  been  ratified  by  a  sufficient 
number  of  States  and  thereby  became  a  part  of  the 
Constitution.  It  had  its  origin  and  principal  support 
in  the  controversy  which  arose  subsequent  to  the 
emancipation  of  the  negroes,  and,  as  shown  by  the 
debates  in  Congress  and  the  State  Legislatures,  was 
intended  to  bring  the  newly  enfranchised  slaves 
within  the  protection  of  Congress.  Although  it  had 
been  a  part  of  the  Constitution  since  1868,  no  case 
involving  the  rights  of  a  colored  person  had  found 
its  way  to  the  Supreme  Court.  The  Slaughter-House 
cases  came  on  for  final  decision  at  the  December 
Term,  1872. 

Justice  Miller,  writing  the  opinion  of  the  Court, 
after  deciding  that  the  statute  was  within  the  police 


THE  FOURTEENTH  AMENDMENT    221 

power  of  the  State,  and  stating  the  Federal  question 
raised  upon  the  record,  says  that  the  Court  is,  for 
the  first  time,  called  upon  to  give  construction  to 
the  two  Amendments,  continuing: 

"We  do  not  conceal  from  ourselves  the  great  re 
sponsibility  which  this  duty  devolves  on  us.  No 
questions,  so  far-reaching  and  pervading  in  their 
consequences,  so  profoundly  interesting  to  the  peo 
ple  of  this  country,  and  so  important  in  their  bearing 
upon  the  relations  of  the  United  States  and  of  the 
several  States  to  each  other  and  to  the  citizens  of 
the  United  States,  have  been  before  this  Court  dur 
ing  the  official  life  of  any  of  its  members." 

He  disposed  of  the  attack  upon  the  statute, 
based  upon  the  Thirteenth  Amendment,  in  a  few 
lines. 

Proceeding  to  the  discussion  of  the  Fourteenth 
Amendment,  he  laid  the  basis  of  his  attack  upon 
Judge  Campbell's  argument  by  limiting  the  mean 
ing  of  the  term  " citizen  of  the  United  States,"  as 
used  in  the  first  clause.  It  is  interesting  to  note  that 
Justice  Miller  follows  the  line  of  thought  resorted 
to  by  Chief  Justice  Taney  in  the  Dred  Scott  case. 
He  adopted  the  historical  method  for  interpreting 
the  sense  in  which  the  language  was  used  by  the 
framers  of  the  Amendment,  and  concluded  that  he 
found,  by  reference  to  the  history  of  the  time,  that 
the  pervading  purpose  lying  at  the  foundation  of  the 
Thirteenth  and  Fourteenth  Amendments  was  to  se 
cure  the  firm  establishment  of  the  freedom  of  the 
negro  from  the  oppressions  of  those  who  had  for 
merly  exercised  dominion  over  him.  While  he  con- 


222      JOHN  ARCHIBALD  CAMPBELL 

ceded  that  probably  others  may  seek  protection 
under  the  provisions  of  the  Amendments,  this  pur 
pose  must  have  fair  and  just  weight  in  any  question 
of  their  construction.  While  this  rule,  resorted  to  for 
aiding  in  the  construction  of  statutes  and  constitu 
tions,  is  useful  and  helpful,  it  is  restrictive  in  its  in 
fluence  upon  the  mind  of  the  judge.  It  invites  him  to 
approach  the  construction  of  the  language  used  by 
those  who  framed  the  Constitution,  from  a  back 
ward  rather  than  a  forward  view.  As  in  the  Dred 
Scott  case,  Chief  Justice  Taney,  putting  himself  in 
the  position  of  the  statesmen  of  1789,  reached  the 
conclusion  that  they  intended  to  include  in  the 
term  "citizen,"  used  in  the  Constitution,  only  per 
sons  of  the  white  race,  so  Justice  Miller,  in  defining 
the  words  "citizens  of  the  United  States,"  by  the 
same  mental  process,  found  that  those  who  framed 
the  Fourteenth  Amendment  had  in  mind  only  ne 
groes,  and  that  "their  main  purpose  was  to  estab 
lish  the  citizenship  of  the  negro,  can  admit  of  no 
doubt." 

Judge  Campbell,  on  the  contrary,  took  a  larger 
view  of  their  purpose  and  caught  a  larger  vision  of 
the  scope  of  its  accomplishment.  To  his  mind  every 
person  then  within  the  jurisdiction  of  the  United 
States  and  every  child  born,  or  person  naturalized, 
was  lifted,  as  it  were,  into  the  status  of  National 
citizenship,  with  the  power  of  the  National  Govern 
ment  pledged  to  the  protection  of  his  rights,  privi 
leges,  and  immunities,  and  every  State  prohibited 
from  making  or  enforcing  any  law  abridging  such 
rights  and  privileges.  The  singular  spectacle  is  pre- 


THE  FOURTEENTH  AMENDMENT    223 

sented  of  the  States  Rights,  Southern  Democratic 
lawyer  urging  the  broadest,  largest  National  view 
and  the  Northern-Nationalist  Republican  Judge 
enforcing  a  much  narrower  application  of  the  lan 
guage,  in  ascertaining  the  intention  of  those  who 
framed  the  Amendment. 

Justice  Miller,  having  thus  laid  the  basis  upon 
which  to  support  his  conclusion,  says:  "The  next 
observation  is  more  important,  in  view  of  the  argu 
ments  of  counsel  in  the  present  case.  It  is,  that  the 
distinction  between  citizenship  of  the  United  States 
and  citizenship  of  a  State  is  clearly  recognized  and 
established.  Not  only  may  a  man  be  a  citizen  of  a 
State,  but  an  important  element  is  necessary  to  con 
vert  the  former  into  the  latter.  He  must  reside 
within  the  State  to  be  a  citizen  of  it,  but  it  is  only 
necessary  that  he  should  be  born  or  naturalized  in 
the  United  States  to  be  a  citizen  of  the  Union." 
Here  again,  the  minds  of  Judge  Campbell  and  Jus 
tice  Miller  diverge.  Justice  Miller  first  finds  in  the 
Amendment  the  creation  of  a  dual  citizenship. 
Judge  Campbell  finds  that,  as  there  is  but  a  single 
source  of  citizenship,  so  the  rights,  privileges,  and 
immunities  of  such  citizenship  inhere  in,  and  pro 
ceed  from,  this  National  citizenship,  and  these  the 
State  may  not  abridge.  Justice  Miller  concludes 
that,  as  the  Amendment  creates  a  dual  citizenship, 
so  there  is  a  corresponding  duality  of  rights,  privi 
leges,  and  immunities.  One  class  of  rights  and  privi 
leges  is  his  by  virtue  of  his  national  citizenship,  and 
for  the  protection  of  these  he  may  rely  upon  the 
Fourteenth  Amendment.  Other  rights,  privileges, 


224      JOHN  ARCHIBALD  CAMPBELL 

and  immunities  are  his  by  virtue  of  his  State  citizen 
ship,  and  for  these  he  must  look  to  the  State.  With 
these  propositions  established  by  the  majority  of 
the  Court,  not  only  was  the  foundation  of  Judge 
Campbell's  argument  destroyed,  but  a  construction 
of  the  Fourteenth  Amendment  was  incorporated 
into  the  National  jurisprudence  which  essentially 
weakened  and  narrowed  its  scope,  and  disappointed 
the  purpose  of  those  who  framed  and  secured  its 
adoption.  With  this  distinction  established,  the  sole 
question  remaining  for  the  Court  was  to  declare  in 
which  class  fell  the  rights,  privileges,  and  immuni 
ties  alleged  to  have  been  abridged  by  the  act.  Jus 
tice  Miller  adopts  the  classification  announced  by 
Justice  Washington,  in  Corfield  vs.  Coryell,1  and 
holds  that  those  rights,  asserted  by  Judge  Campbell 
to  have  been  abridged  by  the  statute,  do  not  come 
within  the  class  which  attach  to  Federal  citizen 
ship,  secured  by  the  Amendment  from  abridgment 
by  the  State. 

Justices  Field,  Bradley,  and  Swayne  filed  opin 
ions,  in  which  Chief  Justice  Chase  concurred,  dis 
senting  from  each  and  every  one  of  Judge  Miller's 
propositions  and  conclusions.  After  stating  the 
status  of  American  citizenship,  prior  to  the  adop 
tion  of  the  Fourteenth  Amendment,  Justice  Field, 
adopting  Judge  Campbell's  view,  says:  "The  first 
clause  of  the  Fourteenth  Amendment  changes  this 
whole  subject,  and  removes  it  from  the  region  of 
discussion  and  doubt.  It  recognizes  in  express  terms, 
if  it  does  not  create,  citizens  of  the  United  States, 

1  4  Washington,  Circuit  Court,  371. 


THE  FOURTEENTH  AMENDMENT    225 

and  it  makes  their  citizenship  dependent  upon  their 
place  of  birth  or  the  fact  of  their  adoption,  and  not 
upon  the  constitution  or  laws  of  any  State,  or  the 
condition  of  their  ancestry.  A  citizen  of  a  State  is 
now  only  a  citizen  of  the  United  States  residing  in 
that  State.  The  fundamental  rights,  privileges,  and 
immunities  which  belong  to  him  as  a  free  man  and  a 
free  citizen,  now  belong  to  him  as  a  citizen  of  the 
United  States  and  are  not  dependent  upon  his  citi 
zenship  of  any  State.  .  .  .  They  do  not  derive  their 
existence  from  its  legislation  and  cannot  be  de 
stroyed  by  its  power.  The  Amendment  does  not  at 
tempt  to  confer  any  new  privileges  or  immunities 
upon  citizens  or  to  enumerate  those  already  exist 
ing.'7  He  further  says  that  if  the  Amendment  has  no 
other  effect  and  protects  against  State  abridgment 
no  other  rights,  privileges,  and  immunities  than 
enumerated  in  the  opinion  of  the  majority,  "it  was 
a  vain  and  idle  enactment  which  accomplished  noth 
ing  and  most  unnecessarily  excited  Congress  and 
the  people  on  its  passage." 

Justice  Field  also  follows  Judge  Campbell's  argu 
ment  in  regard  to  the  effect  of  the  monopolistic 
features  of  the  statute  upon  the  privileges  and  im 
munities  of  the  citizens  of  the  United  States  resid 
ing  in  the  territorial  district  to  which  they  applied, 
saying:  "All  monopolies,  in  any  known  trade  or 
manufacture,  are  an  invasion  of  these  privileges,  for 
they  encroach  upon  the  liberty  of  citizens  to  acquire 
property  and  pursue  happiness  and  were  held  void 
at  common  law  in  the  great  case  of  Monopolies,  de 
cided  during  the  reign  of  Queen  Elizabeth/'  After 


226       JOHN  ARCHIBALD  CAMPBELL 

pointing  out  the  restrictive  effect  of  the  provisions 
of  the  act  upon  the  rights  of  the  people  affected  by 
it,  he  concludes:  "It  is  to  me  a  matter  of  profound 
regret  that  its  validity  is  recognized  by  a  majority 
of  this  Court,  for  by  it  the  right  of  free  labor,  one  of 
the  most  sacred  and  imprescriptible  rights  of  man, 
is  violated." 

Justice  Bradley  thus  states  his  agreement  with 
Judge  Campbell  upon  the  question  of  National  citi 
zenship  as  defined  by  the  Amendment,  which  he  re 
gards  as  one  of  vast  importance,  lying  at  the  very 
foundation  of  the  Government:  "The  question  is 
now  settled  by  the  Fourteenth  Amendment  itself 
that  citizenship  of  the  United  States  is  the  primary 
citizenship  of  this  country  and  that  State  citizen 
ship  is  secondary  and  derivative,  depending  upon 
citizenship  of  the  United  States  and  the  citizen's 
place  of  residence.  .  .  .  Every  citizen,  then,  being 
primarily  a  citizen  of  the  State  where  he  resides, 
what  in  general  are  the  privileges  and  immunities  of 
a  citizen  of  the  United  States?  Is  the  right,  liberty, 
or  privilege  of  choosing  any  lawful  employment  one 
of  them?  .  .  .  This  seems  to  me  the  essential  ques 
tion  before  us  for  consideration.  And,  in  my  judg 
ment,  the  right  of  any  citizen  to  follow  whatever 
lawful  employment  he  chooses  to  adopt  (submitting 
himself  to  all  lawful  regulations)  is  one  of  his  most 
valuable  rights  and  one  which  the  Legislature  of  a 
State  cannot  invade,  whether  restrained  by  its  Con 
stitution  or  not."  After  an  exhaustive  discussion  he 
says:  "In  my  view,  a  law  which  prohibits  a  large 
class  of  citizens  from  adopting  a  lawful  employ- 


THE  FOURTEENTH  AMENDMENT    227 

ment,  or  from  following  a  lawful  employment  pre 
viously  adopted,  does  deprive  them  of  liberty  as 
well  as  property,  without  due  process  of  law.  Their 
right  of  choice  is  a  portion  of  their  liberty;  their 
occupation  is  their  property."  Answering  Justice 
Miller's  statement  that  the  principal  purpose  of  the 
Amendment  was  the  protection  of  the  rights  of  the 
negro,  and  confining  it  to  cases  in  which  his  rights 
were  abridged  by  State  legislation,  he  says  that  "the 
Amendment  was  an  attempt  to  give  voice  to  the 
strong  National  yearning  for  that  time  and  that 
condition  of  things,  in  which  American  citizenship 
should  be  a  sure  guaranty  of  safety,  and  in  which 
every  citizen  of  the  United  States  might  stand  erect 
on  every  portion  of  its  soil  in  the  full  enjoyment  of 
every  right  and  privilege  belonging  to  a  freeman, 
without  fear  or  molestation . ' '  Justice  S wayne ' '  adopts 
the  views"  of  Justice  Field  and  Justice  Bradley  and 
submits  others  in  support  of  them.  Chief  Justice 
Chase,  "  although  he  felt  a  great  interest  in  the  cases, 
[was]  not  able  to  prepare  a  dissenting  opinion."  1 

The  monopoly  did  not  survive  the  period  allotted 
to  it  by  its  charter.  Upon  the  downfall  of  the  recon 
struction  regime  and  the  restoration  to  the  people 
of  the  State  of  the  right  of  self-government,  a  new 
Constitution  was  adopted  giving  to  the  municipal 
authorities  power  to  provide  for  the  public  welfare 
without  creating  monopolies,  and  enabling  them  to 
restore  to  the  people  the  rights,  privileges,  and  im 
munities  of  which  they  had  been  deprived.  An  ordi 
nance  was  enacted  by  the  City  Governing  Board, 

1  Hart,  A.  B. :  Salmon  P.  Chase,  American  Statesmen  Series,  414. 


228       JOHN  ARCHIBALD  CAMPBELL 

restoring  to  the  people  the  right  to  engage  in  busi 
ness  by  complying  with  its  rules  and  regulations. 
The  Crescent  City  Slaughter-House  Company  re 
sisted  the  enforcement  of  the  ordinance,  relying  for 
the  protection  of  its  monopoly  upon  the  contract 
clause  of  the  Constitution  as  construed  in  the  Dart 
mouth  College  case.1  The  District  Court  sustained 
its  contention,  but,  upon  appeal,  the  Supreme  Court 
reversed  the  judgment,  Justice  Miller,  again  writing 
the  opinion,  resting  the  conclusion  upon  the  princi 
ple  that  the  Legislature  could  not,  by  any  contract, 
limit  the  power  of  a  succeeding  Legislature  to  pro 
vide  for  the  safety  of  the  public  health  and  public 
morals.  The  learned  Justice  adhered  to  the  decision 
in  the  Slaughter-House  cases,  that  the  charter  did 
not  create  a  monopoly  or  abridge  the  rights  of  citi 
zens  of  the  United  States.  This  aroused  the  opposi 
tion  of  Justices  Field  and  Bradley,  who  wrote  vigor 
ous  opinions  in  which  they  were  joined  by  Justice 
Harlan,  who  had  succeeded  Justice  Davis,  and  Jus 
tice  Woods,  who  had  succeeded  Justice  Strong,  both 
of  whom  concurred  in  the  majority  opinion  in  the 
Slaughter-House  cases.  Justices  Field  and  Bradley 
did  not  confine  themselves  to  a  restatement  of  their 
opinions  that  the  charter  created  a  monopoly,  but 
again,  and  in  stronger  language,  declared  their  ad 
herence  to  the  construction  of  the  first  clause  of  the 
Fourteenth  Amendment  for  which  they  contended 
in  the  original  case.  It  is  interesting  to  note  by  what 
a  narrow  margin  of  judicial  opinion  the  construction 
of  the  first  clause  of  the  Amendment  became  fixed 

1  4  Wheaton,  518. 


THE  FOURTEENTH  AMENDMENT    229 

in  the  jurisprudence  of  the  country,  notwithstand 
ing  the  criticism  which  it  encountered.  If  Justice 
Harlan  instead  of  Justice  Davis  had  sat,  the  deci 
sion  would  have  been  with  Judge  Campbell.  The 
same  is  true  as  to  Justices  Woods  and  Strong.1 

Whatever  may  be  thought  of  the  conclusion 
reached  by  the  majority  of  the  Justices  in  the 
Slaughter-House  cases,  there  can  be  no  doubt  that 
it  was  disappointing  to  those  who  framed  and  se 
cured  the  adoption  of  the  Fourteenth  Amendment. 
Senator  Boutwell,  who  had  been  a  member  of  the 
Committee  on  Reconstruction  which  framed  the 
Amendment,  said  that  the  Court  had  "  erred  in 
holding  that  there  were  two  classes  of  rights  —  Na 
tional  and  State";  and  Senator  Howe  declared  that 
"the  American  people  would  say,  as  they  had  said 
about  the  Dred  Scott  decision,  that  it  was  not  law 
and  could  not  be  law."  2 

Mr.  Elaine  says  that,  by  the  decision,  "the 
Amendment  has  been  deprived,  in  part,  of  the 
power  which  Congress  intended  to  impart  to  it."  3 
Mr.  William  D.  Guthrie  thinks  that  the  opinion  de 
livered  on  behalf  of  the  majority  of  the  Court  went 
beyond  what  was  required  for  the  decision  of  the 
cases,  "and  expressed  a  very  narrow  view  of  the 
scope  of  the  Amendment;  that  the  broader  views 
contained  in  the  dissenting  opinions  embodied  a 
much  truer  statement  of  its  purpose  and  scope."  4 

1  111  U.S.  746;  Butchers'  Union  Co.  vs.  Crescent  City,  60. 

2  Flack,  H.  E. :  The  Adoption  of  the  Fourteenth  Amendment,  266, 
269. 

3  Twenty  Years  of  Congress,  n,  419. 

4  The  Fourteenth  Amendment,  20. 


230      JOHN  ARCHIBALD  CAMPBELL 

Professor  John  W.  Burgess  very  much  more 
strongly  criticizes  the  decision  and  expresses  "per 
fect  confidence  that  it  will  be  overturned."  1  Re 
ferring  to  this  and  the  Cruikshank  Case,2  Mr. 
Charles  W.  Collins  says  that  they  "marked  the 
practical  overthrow  of  the  Congressional  idea  of  the 
Fourteenth  Amendment  within  seven  years  after 
its  victorious  adoption.3 

Mr.  J.  Randolph  Tucker,  in  his  argument  in 
Spies  vs.  Illinois,4  expressed  with  approval  the  view 
urged  by  Judge  Campbell,  as  did  Mr.  John  G.  John 
son  and  his  associates  in  Twining  vs.  New  Jersey,5 
wherein  they  insisted  that  the  construction  of  the 
first  clause  is  "still  an  open  question."  Professor 
Charles  A.  Beard  is  correct  in  saying  that  "there  is 
plenty  of  evidence  to  show  that  those  who  framed 
the  Fourteenth  Amendment  and  pushed  it  through 
Congress  had  in  mind  a  far  wider  purpose  than  that 
of  providing  a  general  restraining  clause  for  State 
Legislatures."  6  It  is  probable  that  Justice  Moody, 
in  Twining  vs.  New  Jersey,  correctly  stated  the 
effect  of  the  opinion  of  Justice  Miller  upon  the 
construction  of  the  Amendment,  and  if  not  the 
controlling,  at  least,  the  persuasive  reason  for  its 
adoption.  Justice  Moody  says: 

"There  can  be  no  doubt,  so  far  as  the  decision  in 
the  Slaughter-House  cases  has  determined  the  ques 
tion,  that  the  civil  rights  sometime  described  as 

1  Political  Science  and  Comparative  Constitutional  Law,  I,  225. 

2  92  U.S.  542. 

3  The  Fourteenth  Amendment  and  the  States,  22. 

4  124  U.S.  131  (150).  6  211  U.S.  78. 
6  Contemporary  American  History,  55. 


THE  FOURTEENTH  AMENDMENT    231 

fundamental  and  inalienable,  which  before  the  war 
amendments  were  enjoyed  by  State  citizenship  and 
protected  by  State  Governments,  were  left  un 
touched  by  this  clause  of  the  Fourteenth  Amend 
ment.  Criticism  of  this  case  has  never  entirely 
ceased,  nor  has  it  ever  received  universal  assent  by 
members  of  this  Court.  Undoubtedly,  it  gave  much 
less  effect  to  the  Fourteenth  Amendment  than  some 
of  the  public  men  active  in  framing  it  intended  and 
disappointed  many  others. 

1  i  On  the  other  hand,  if  the  views  of  the  minority 
had  prevailed,  it  is  easy  to  see  how  far  the  authority 
and  independence  of  the  States  would  have  been 
diminished  by  subjecting  all  their  legislative  acts  to 
correction  by  the  legislative,  and  review  by  the  judi 
cial,  branch  of  the  National  Government.  .  .  .  This 
part,  at  least,  of  the  Slaughter-House  cases  has 
been  steadily  adhered  to  by  this  Court.  .  .  .  The 
distinction  between  National  and  State  citizenship 
and  their  respective  privileges  there  drawn  has 
come  to  be  firmly  established." 

While,  as  said  by  Judge  Campbell,  indulging  in 
the  retrospection  of  retirement,  "it  was  probably 
best  for  the  country  that  the  case  so  turned  out," 
it  is  difficult  to  suppress  the  thought  that  the  major 
ity  of  the  Court  were,  to  some  extent,  and  perhaps 
unconsciously,  affected  by  the  fact  that,  although 
intended  to  secure  the  citizenship  of  the  newly  en 
franchised  negro  and  immunity  from  abridgment  of 
his  civil  rights  by  those  who  had  lately  held  him  in 
slavery,  the  language  was  sufficiently  comprehen 
sive,  unless  restricted,  to  "find  that  no  such  results 


232      JOHN  ARCHIBALD  CAMPBELL 

were  intended  by  Congress  which  proposed  the 
Amendment,  nor  by  the  Legislatures  of  the  States 
which  ratified  it." 

Justice  Miller  overlooked,  or  laid  aside,  the  fact 
that,  when  the  Amendment  was  framed  and  pressed 
to  ratification,  the  majority  in  Congress  and  in  the 
dominant  sections  of  the  country  were  determined 
to  bring  about  that  result,  at  least  as  to  the  South 
ern  States,  which  they  then  regarded,  and  intended 
to  hold,  as  " conquered  provinces."  When,  however, 
the  Amendment  was  brought  before  the  Court  by 
those  invoking  an  application,  entirely  different 
from  what  was  anticipated,  they  realized  that  the 
language  of  the  Amendment  to  the  Constitution 
was  capable  of  being  given  more  permanent  and 
larger  application  than  its  authors  intended.  The 
pendulum  had  begun  to  swing  backward,  and  the 
integrity  of  local  self-government  was  resuming  its 
former  importance.  Justice  Miller  regarded  his 
opinion  in  the  case  as  a  valuable  contribution  to  the 
preservation  of  the  constitutional  relation  of  the 
States  to  the  Federal  Government,  and  correctly  so.1 

Senator  Conkling  later  insisted  that  it  was  within 
the  purpose  of  the  Committee  which  framed  the 
Amendment  to  include  others  than  negroes.  Refer 
ring  to  some  of  the  undesirable,  if  not  unexpected, 
results  of  adopting  the  National  theory  of  citizen 
ship,  Justice  Miller  says  that,  while  the  arguments 
drawn  from  the  consequences  urged  against  the 
adoption  of  a  particular  construction  of  a  statute  or 

1  Stern,  Horace:  Great  American  Lawyers,  vi,  541;  Justice  Miller: 
Address,  Centennial,  University  of  Michigan  (1887),  118. 


THE  FOURTEENTH  AMENDMENT    233 

constitution  is  not  always  conclusive,  in  this  in 
stance  such  consequences  are  so  serious  and  so  far- 
reaching  that  the  argument  has  an  irresistible  force. 
Fortunately  those  who  differed  from  his  conclusion 
found  nothing  in  the  political  or  sectional  attitude 
of  the  Justices  upon  which  to  base  their  criticism, 
other  than  an  honest  difference  of  opinion.  Justice 
Miller  and  Justice  Bradley  represented  the  most 
pronounced  nationalistic  school  of  thought,  whereas 
Justice  Chase  and  Justice  Field  were  of  the  moder 
ate  State-Rights  school.1  Justice  Clifford,  who  went 
with  the  majority,  was  a  Democrat,  while  the  others 
were  Republicans  and  Justice  Swayne,  who  went 
with  the  minority,  was  a  Republican.  The  South, 
supposed  to  be  most  directly  interested  in  the  ques 
tion  involved,  had  no  representative  on  the  Court. 
Justice  Miller's  prophecy  that  no  action  of  a  State, 
not  directed  by  way  of  discrimination  against  the 
negroes  as  a  class,  would  be  held  to  come  within  the 
purview  of  the  Amendment,  has  not  been  realized. 
Mr.  Collins,  with  much  industry,  has  collated  the 
cases  which,  up  to  1912,  had  been  before  the  Court 
involving  the  construction  of  the  Fourteenth 
Amendment,  finding  that  of  more  than  six  hundred, 
only  twenty-eight  involved  racial  rights  of  the 
negro.2 

A  study  of  the  cases  found  in  the  Supreme  Court 
Reports  tends  to  sustain  the  suggestion  of  a  law- 

1  Stern:  Great  American  Lawyers,  vi,  541;  Pomeroy,  ibid,  vn, 
1;  ibid.  53;  Hart:  Salmon  P.  Chase,  American  Statesmen  Series, 
67. 

2  Collins,  C.  W.:  The  Fourteenth  Amendment  and  the  States,  139; 
Bailey  vs.  Alabama,  219  U.S.  219. 


234       JOHN  ARCHIBALD  CAMPBELL 

yer,  made  in  the  argument  of  a  case  before  the 
Supreme  Court  of  North  Carolina,  referring  to  the 
Fourteenth  Amendment,  that  it  was  made  "for  the 
protection  of  the  negro,  but  has  become  the  asylum 
of  the  multi-millionaire." 

It  is  doubtful  whether  any  new  contribution  has 
been  made  to  the  construction  of  the  first  clause  of 
the  Amendment  since  Judge  Campbell's  argument 
and  the  opinion  in  the  Slaughter-House  cases.  As 
said  by  Justice  Miller,  while  the  decision  did  not 
meet  the  approval  of  four  out  of  nine  Justices,  and 
although  there  were  intimations  that  in  the  legisla 
tive  branch  of  the  Government  the  opinion  would 
be  reviewed  and  criticized  unfavorably,  no  attempt 
to  overrule  or  reverse  the  case  has  been  made.1 

It  is  one  of  many  illustrations  afforded  by  our 
constitutional  system  of  government,  in  which  lan 
guage  supposed  to  be  clear  and  explicit,  when  used 
by  the  legislative  department,  is  found  to  be  obscure 
and  capable  of  differing  constructions  by  the  judi 
cial  department.  Senator  Edmunds,  who  took  part 
in  formulating  the  Fourteenth  Amendment,  said: 
"  There  is  no  word  in  it  that  did  not  undergo  the 
completest  scrutiny.  There  is  no  word  in  it  that  was 
not  scanned,  and  intended  to  mean  the  full  and 
beneficial  thing  it  seems  to  mean.  There  was  no  dis 
cussion  omitted;  there  was  no  conceivable  posture 
of  affairs  to  the  people  who  had  it  in  hand  which  was 
not  considered."2  And  yet  it  was  found,  upon  the 

1  Justice  Miller:  Address,  Centennial,  University  of  Michigan 
(1887). 

2  Guthrie:  The  Fourteenth  Amendment,  25. 


THE  FOURTEENTH  AMENDMENT    235 

first  attempt  to  enforce  its  first  clause,  after  two 
arguments  by  such  lawyers  as  Jeremiah  S.  Black, 
Matthew  H.  Carpenter,  John  A.  Campbell,  and 
J.  Q.  A.  Fellows,  that  the  Court,  by  a  division  of 
five  to  four,  radically  differed  in  respect  both  to  the 
intention  of  the  framers  and  the  construction  of 
the  language  used  by  them. 


CHAPTER  IX 

LAST  YEARS  AT  THE  BAR 

IN  Jackson  vs.  Ludeling,1  Judge  Campbell,  associ 
ated  with  Judge  Spofford,  successfully  resisted  the 
consummation  of  what  Justice  Strong  characterized 
"a  great  wrong,  perpetrated  by  the  agency  of  legal 
forms."  The  case  reveals  a  series  of  transactions,  by 
which  a  holder  of  a  claim  of  $720,  in  confederation 
with  the  officers  of  a  railroad  company  and  an  at 
torney  of  the  Court,  by  means  of  fraudulent  com 
binations  and  suppression  of  bidding,  succeeded  in 
securing  title  to  a  railroad  for  fifty  thousand  dollars 
in  the  construction  of  which  two  million  dollars  had 
been  expended  and  for  which  the  defendants  were 
offered  immediately  after  the  sale  one  million  dol 
lars.  Justice  Strong,  following  Judge  Campbell's  ar 
gument  denouncing  the  methods  resorted  to  by  the 
defendants  in  acquiring  the  property,  said:  "The 
forms  of  law  were  scrupulously  observed.  But  they 
rely  upon  faithlessness  to  trusts  and  common  obliga 
tions,  upon  combinations  against  the  policy  of  the 
law,  and  fraudulent,  and  upon  confederate  and  suc 
cessful  efforts  to  deprive  them  wrongfully  of  property 
in  which  they  had  a  large  interest,  for  the  benefit  of 
persons  in  whom  they  had  a  right  to  place  confidence." 
As  said  by  the  Justice  in  his  exposure  of  the  fraud : 
"It  is  necessary  to  a  thorough  understanding  of  the 
case,  to  consider  the  relation  in  which  many  of  the 

1  21  Wall.  616. 


LAST  YEARS  AT  THE  BAR          237 

purchasers  at  the  sale,  who  are  the  present  defend 
ants,  stood  to  the  complainants,  and  how  far  their 
conduct  was  consistent  with  that  relation.  ...  It  is 
impossible  to  sustain  such  a  transaction.  Through 
out  it  was  grossly  inequitable.  That  the  property 
was  sacrificed  by  means  of  an  unlawful  and  wide 
spread  combination  is  abundantly  proved,  and  that 
the  directors  who  were  parties  to  it,  and  who  be 
came  the  purchasers,  were  guilty  of  an  inexcusable 
violation  of  confidence  reposed  in  them,  admits  of 
no  doubt.  Ludeling,  it  is  true,  was  not  a  director, 
but  he  was  a  leading  member  of  the  combination 
and  its  chief  agent  in  carrying  out  its  plans.  He 
knew  its  purposes.  He  knew  its  illegality.  He  had 
negotiated  the  surrender  of  Home  with  full  knowl 
edge  of  Home's  breach  of  trust.  .  .  .  Indeed,  Ludel 
ing  appears  to  have  had  complete  possession  of  the 
sheriff.  .  .  .  The  defendants  can  take  nothing  from 
such  a  sale  thus  made.  Were  we  to  sustain  it,  we 
should  sanction  a  great  moral  and  legal  wrong,  give 
encouragement  to  faithlessness  to  trusts  and  confi 
dence  reposed,  and  countenance  combinations  to 
wrest  by  the  forms  of  law  from  the  uninformed  and 
confiding  their  just  rights." 

At  the  time  this  opinion  was  delivered,  the  de 
fendant  Ludeling  was  Chief  Justice  of  the  Supreme 
Court  of  Louisiana,  having  been  appointed  by  Gov 
ernor  Warmouth.  At  the  end  of  his  term,  1877,  he 
was  reappointed  by  Governor  Kellogg,  but  was 
overthrown  in  January,  1877,  in  the  downfall  of  the 
corrupt  administration  and  the  restoration  of  hon 
est  government. 


238      JOHN  ARCHIBALD  CAMPBELL 

Referring  to  Judge  Campbell's  argument,  it  is 
said:  "His  attack  was  upon  the  foreclosure,  under 
executory  process  of  the  civil  law  of  Louisiana,  of 
the  railroad.  He  destroyed  the  title  of  Ludeling  and 
his  associates.  He  overwhelmed  the  defendants  and 
drove  them  before  him.  ...  It  was  a  State-famous 
litigation,  and  the  excoriation  of  his  argument  is 
somewhat  reflected  in  the  Court's  opinion;  he  won 
it  justly.  But  aside  from  the  private  interest  he  ren 
dered  an  equally  great  and  timely  public  service."  1 

The  Court  set  the  sale  aside,  ordered  the  defend 
ants  to  restore  the  property  to  the  owners,  and  di 
rected  an  accounting.  A  number  of  novel  and  inter 
esting  questions  were  presented  on  the  accounting, 
resulting  in  further  appeals.  In  Jackson  vs.  Ludeling, 
in  which  Campbell  appeared  for  Jackson,2  the  Court 
disallowed  a  large  number  of  bonds  which  were 
never  issued  by  the  officers  of  the  corporation,  but 
in  an  incomplete  condition  were  seized  and  carried 
away,  during  the  Civil  War,  by  soldiers  and  sold  in 
the  market.  It  was  held  that  enough  appeared  on  the 
face  of  the  bonds,  in  connection  with  the  price  at 
which  they  were  sold,  to  put  the  purchasers  upon 
notice  of  their  invalidity.  The  railroad  remained  in 
the  possession  of  the  defendants  for  several  years 
subsequent  to  the  fraudulent  purchase,  and  upon 
the  accounting  they  made  claim  for  improvements 
or  ameliorations.  The  questions  were  decided  ac 
cording  to  the  provisions  of  the  Louisiana  Code, 

1  Letter  of  Henry  P.  Dart;  Lonn:  Reconstruction  in  Louisiana, 
304,  485. 

2  99  U.S.  434. 


LAST  YEARS  AT  THE  BAR          239 

which  "is  based  upon  the  civil  law,  not  precisely  as 
laid  down  in  the  compilations  of  Justinian,  but  as 
interpreted  in  the  jurisprudence  of  France  and 
Spain:  and  had  some  peculiar  rules  on  the  subject." 
This  controversy  invited  Judge  Campbell  into  a 
favorite  field  of  jurisprudence.  His  argument 
abounded  in  quotations  from  Pothier,  Savigny, 
Demolombe,  and  other  civilians.  In  conclusion  he 
thus  describes  the  conduct  of  the  defendants,  refer 
ring  to  their  claim  for  ameliorations:  "The  owners 
and  builders  of  them  possessed  in  bad  faith.  They 
knew  of  the  adverse  title;  they  knew  of  the  imper 
fections  of  their  own;  there  may  have  been  contriv 
ance,  counsel,  combination,  rapid  movements  to 
acquire  possession  tortiously  surprising  the  unin 
formed  and  the  unsuspecting;  there  may  have  been, 
at  the  time,  contagion  of  disorder,  a  malaria  of  cov- 
etousness,  stimulating  men  to  an  appropriation  of 
the  property  of  others  for  the  uses  of  a  combina 
tion." 

By  reason  of  the  character  of  the  property  upon 
which  the  improvements  were  made,  it  was  difficult 
to  apply  the  provisions  of  the  Code,  enacted  in  1808 
and  1825,  providing  for  improvements  made  upon 
"plantations,  constructions,  and  works"  by  a  per 
son  wrongfully  in  possession,  nor  was  much  aid  de 
rived  from  the  decisions  of  the  State  Court.  Justice 
Bradley,  after  an  exhaustive  and  interesting  discus 
sion,  concludes:  "We  have  proceeded  on  the  princi 
ple  of  carrying  out  the  spirit  and  equity  of  the  law, 
since  it  cannot  be  carried  out  in  the  letter."  Justice 
Field,  however,  dissented,  putting  his  objection  to 


240      JOHN  ARCHIBALD  CAMPBELL 

the  allowance  to  the  claim  for  improvements  upon 
the  ground  that  the  defendants  were  not  in  posses 
sion  as  bona  fide  claimants.  He  says:  "I  know  of  no 
law  and  no  principle  of  justice  which  would  allow 
defendants  anything  for  expenditures  on  property 
they  wrongfully  obtained  and  wrongfully  withheld 
from  the  owners,  who  were  constantly  calling  for 
requisition.  Why  should  the  owners  pay  for  expen 
ditures  they  never  ordered  or  for  construction  of 
works  they  never  authorized?  The  defendants  knew 
all  the  time  the  vice  of  their  title.  They  knew  they 
were  not  possessors  in  good  faith;  they  concocted 
the  scheme  by  which  the  fraudulent  sale  was  made; 
and  this  the  Court  has  so  adjudged.  .  .  .  The 
learned  counsel  for  the  appellants  who  argued  this 
case  showed,  I  think  conclusively,  by  reference  to 
numerous  adjudications  and  approved  text  writers, 
that  the  civil  law  in  Europe  and  in  Louisiana  draws 
the  same  line  of  demarcation  between  the  possessor 
in  good  faith  and  the  possessor  in  bad  faith  in  allow 
ing  for  improvements  and  expenditures  on  the  prop 
erty  of  another.  ...  I  prefer  in  this  case  to  stand  by 
the  ancient  law,  than  to  follow  any  new  doctrines 
supposed  to  arise  out  of  the  character  of  railroad 
property.  To  me  it  seems  that  the  peculiar  character 
of  that  property  requires  the  special  application 
of  the  old  law;  for  just  in  proportion  to  the  value  of 
this  property  is  the  temptation  to  get  possession  of 
it,  and  if  plunderers  can,  when  compelled  to  restore 
it,  be  allowed  for  their  expenditures  and  alleged  im 
provements,  there  will  be  an  added  incentive  to 
plunder." 


LAST  YEARS  AT  THE  BAR          241 

In  this  appeal  Judge  Campbell  and  Judge  Spof- 
ford  were,  as  in  the  Slaughter-House  cases,  opposed 
by  Jeremiah  S.  Black  and  Matthew  H.  Carpenter. 
Ludeling,  having  by  the  "  Revolution  of  1877"  lost 
his  seat  on  the  Bench,  appeared  also  for  the  defend 
ants. 

The  effort  on  the  part  of  several  of  the  States 
to  invoke  the  original  jurisdiction  of  the  Supreme 
Court  of  the  United  States  to  enforce  payment  by 
the  State  of  Louisiana  of  interest  on  her  bonds, 
brought  to  Judge  Campbell  the  opportunity  to  make 
what  is  regarded  as  his  greatest  argument  upon 
the  construction  of  the  Constitution,  defining  and 
limiting  the  power  vested  in  the  judicial  department 
in  controversies  wherein  the  States  were  parties.1 

The  Legislatures  of  New  Hampshire  and  New 
York  enacted  statutes,  enabling  any  citizen  holding 
bonds  issued  by  a  State,  upon  which  the  interest  had 
not  been  paid  or  the  principal  money  was  due,  to 
assign  to  the  State  such  coupons  or  bonds.  The 
statute  directed  the  Attorney-General  of  such  State, 
upon  the  deposit  of  the  bonds  or  coupons,  with  a 
sum  sufficient  to  cover  the  costs  incurred,  to  bring 
suit  or  proceeding  in  the  name  of  the  State,  to  en 
force  the  payment  of  the  coupons  or  bonds,  in  the 
Supreme  Court  of  the  United  States,  and  to  employ 
counsel  to  prosecute  such  suits.  No  cost  was  to  be 
paid  or  expense  incurred  by  the  State.  Counsel  fees 
were  to  be  paid  from  the  recovery.  The  Attorney- 
General  was  directed  to  pay  over  to  the  assignor  of 

1  Art.  in,  Section  2,  and  the  Eleventh  Amendment.  New  York 
and  New  Hampshire  vs.  Louisiana,  108  U.S.  76. 


242      JOHN  ARCHIBALD  CAMPBELL 

such  bonds  or  coupons  all  sums  recovered,  after  pay 
ing  the  cost  and  expense  of  the  litigation. 

Pursuant  to  the  provisions  of  these  statutes,  citi 
zens  of  New  York  and  New  Hampshire  assigned 
coupons  for  interest  on  bonds  issued  by  the  State 
of  Louisiana,  and  original  bills  in  equity  were  filed 
in  the  Supreme  Court  to  enforce  their  payment. 
Wheeler  H.  Peckham,  David  Dudley  Field,  William 
A.  Duer,  and  Leslie  W.  Russell,  Attorney-General, 
represented  the  States  of  New  Hampshire  and  New 
York.  John  A.  Campbell  and  J.  C.  Egan,  Attorney- 
General,  represented  Louisiana.  Judge  Campbell  in 
sisted  that  the  immunity  of  the  State  from  suit  was 
an  incident  to  sovereignty  and  had  existed  since  the 
Declaration  of  Independence,  during  the  Confedera 
tion  of  the  United  States.  He  said:  "This  immunity 
ought  not  to  be  evaded,  nor  infringed  by  any  indi 
rection,  collusion,  contrivance,  simulation,  or  fiction 
in  modes  of  judicial  procedure,  but  should  be  main 
tained  in  the  exactness  of  the  letter  and  fullness  of 
the  spirit  of  the  Constitution." 

Following  a  statement  of  the  general  principles 
upon  which  the  constitutional  status  and  the  re 
served  rights  of  the  States  are  based,  he  says:  "The 
State  administration  within  this  range  may  be  car 
ried  on  as  independently  as  if  the  Government  of 
the  United  States  did  not  exist.  The  power  of  taxa 
tion,  with  the  auxiliary  and  consequential  power  of 
assessment,  collection,  preservation,  and  appropria 
tion  of  the  monies  arising  from  taxation,  extends  to 
all  the  property  within  the  State  which  exists  by  its 
authority  or  was  introduced  by  its  permission." 


LAST  YEARS  AT  THE  BAR          243 

Defining  the  character  of  the  controversies  be 
tween  the  States  contemplated  by  the  makers  of  the 
Constitution,  of  which  jurisdiction  was  conferred 
upon  the  Supreme  Court,  and  denying  the  power  of 
a  State  to  acquire  by  assignment  such  a  controversy 
with  a  sister  State,  he  says:  "It  is  only  by  their  con 
sent  that  controversies  between  two  or  more  States 
are  subject  to  the  determination  of  this  Court. "  That, 
"as  this  consent  is  the  only  cause  of  jurisdiction,  and 
the  consent  is  confined  to  a  single  and  distinct  class 
of  political  and  judicial  persons,  all  of  whom  are 
associated  under  an  organic  law  which  determines 
their  relations  and  intercourse,  this  jurisdiction  can 
not  be  extended  to  include  controversies  which  did 
not  originate  in  some  lawful  intercourse  or  connec 
tion  of  the  one  State  with  the  other  who  are  parties, 
and  cannot  include  demands  acquired  by  assign 
ment  and  growing  out  of  intercourse  to  which  the 
States  were  not  parties  and  have  not  direct  and  im 
mediate  interest." 

He  gives  an  interesting  history  of  the  origin  and 
formation  of  the  article  and  section  of  the  Constitu 
tion  defining  the  jurisdiction  of  the  Federal  Courts, 
calling  attention  to  the  fact  that  of  the  Committee 
of  the  Convention  of  1787,  appointed  to  draft  and 
report  a  form  of  the  Constitution,  Rutledge  and 
Ellsworth  became  Chief  Justices,  Wilson  an  Asso 
ciate  Justice  of  the  Supreme  Court,  and  Randolph 
the  first  Attorney-General.  He  quotes  the  language 
of  Hamilton  in  the  "  Federalist,"  and  refers  to  the 
debate  in  the  Virginia  Convention  which  ratified 
the  Constitution,  noting  the  criticism  of  the  article 


244      JOHN  ARCHIBALD  CAMPBELL 

by  George  Mason  and  Patrick  Henry  and  the  an 
swer  by  John  Marshall  and  James  Madison,  to  their 
apprehension  that,  by  its  terms,  a  State  was  made 
subject  to  a  suit  by  an  individual.  He  urges:  "The 
contemporary  exposition,  which  is  esteemed  so 
strong  and  trustworthy  in  the  determination  of  the 
true  intention  of  the  authors  of  a  law  or  constitu 
tion,  leaves  little  doubt  on  the  subject.  The  general 
opinion  was  a  State  could  not  be  sued  without  her 
consent.  This  opinion  was  inculcated  by  the  most 
prominent  supporters  of  the  Constitution." 

He  discusses  the  "  disturbance  made  on  this  sub 
ject,"  by  the  decision  in  Chisholm  vs.  Georgia,1  the 
numerous  protests  which  followed  the  decision,  and 
the  action  of  John  Hancock,  Governor  of  Massa 
chusetts,  and  his  successor,  Samuel  Adams,  result 
ing  in  a  special  session  of  the  Legislature  and  the 
passage  of  resolutions,  instructing  the  Senators  and 
Representatives  to  "adopt  the  most  speedy  and 
effectual  measures  in  their  power  "to  obtain  such 
amendments  to  the  Constitution  as  will  remove  any 
clause  or  article  of  the  Constitution  which  can  be 
construed  to  imply  or  justify  a  decision  that  a  State 
is  compellable  to  answer  in  any  suit  by  an  individual 
or  individuals  in  any  court  of  the  United  States." 

This  is  followed  by  a  history  of  the  introduction, 
by  Caleb  Strong,  of  Massachusetts,  of  the  resolu 
tion  which  was  adopted  as  the  Eleventh  Amend 
ment.  It  is  interesting  to  note,  as  evidence  of  the 
care  with  which  the  power  to  sue  a  State  by  an  in 
dividual  was  negatived  and  the  danger  of  judicial 

1  2  Dall.  419. 


LAST  YEARS  AT  THE  BAR          245 

construction  to  the  contrary  excluded,  that,  whereas 
the  resolution  as  introduced  simply  declared  that 
the  judicial  power  of  the  United  States  "  shall  not 
extend/7  it  was  so  amended  as  to  ordain  that  such 
power  " shall  not  be  construed  to  extend."  1  All 
other  amendments  were  rejected  by  large  majori 
ties,  and  the  resolution  was  adopted  in  the  Senate 
by  a  vote  of  22  to  2,  and  in  the  House  of  Represent 
atives  by  81  to  9. 

Having  discussed  the  general  constitutional  ques 
tion,  Judge  Campbell  proceeds  to  deal  with  the 
instant  case,  saying:  "The  General  Court  of  New 
Hampshire  seems  disposed  to  employ  this  Court 
with  the  grievances  that  her  citizens  may  have  or 
shall  acquire  in  commercial  intercourse  with  any 
State  of  the  Union,  or  with  the  citizens  of  any  State 
of  the  Union  in  which  the  State  may  be  chargeable. 
The  Court  only  requires  an  assignment  of  the  right 
to  complain  and  accordingly  a  complaint  will  be 
made  as  the  assignor  directs. " 

He  treats  the  "assignment"  of  the  coupons  to  the 
State,  for  the  avowed  purpose  of  conferring  upon  it 
the  right  to  sue,  as  a  mere  fiction,  saying:  "Men 
have  actually  been  made  to  regard  fictions  as  apt 
and  necessary  to  good  government  in  general  and 
good  judicature  in  particular.  That  fiction  debases 
the  intellectual  and  mental  frame  of  all  those  upon 
whom  the  imposture  passes,  and  by  whom  the  false 
hood  uttered  in  place  of  a  reason,  is  accepted  as  con 
stituting  a  reason  and  that  a  sufficient  one;  and 

1  Braxton:  "The  Eleventh  Amendment,"  Journal,  Virginia  Bar 
Association  (1907),  185. 


246      JOHN  ARCHIBALD  CAMPBELL 

when  employed  by  a  judicial  functionary  the  evil  is 
greatly  aggravated.  .  .  .  Commentators,  historians, 
and  moralists  have  complained  of  the  abuses  in  the 
jurisprudence  and  procedure  of  the  English  courts 
and  have  expressed  condemnation  of  the  usurpa 
tions  of  the  courts  and  of  their  tolerance  of  false 
hood,  ascribing  to  them  a  pernicious  influence  on  the 
probity  of  lawyers,  the  dignity  of  the  court,  and  ad 
dition  to  the  delays,  expense,  and  uncertain  results 
of  judicial  proceedings,  the  encouragement  of  petti 
fogging,  and  the  contamination  of  justice  itself, 
which  is  inseparable  from  truth.  ...  It  can  hardly 
be  charged  upon  the  authors  of  the  Constitution 
that  they  had  a  design  to  encourage  any  duplicity 
or  to  promote  opportunities  for  disguise  or  indirec 
tion.  The  citizens  of  the  United  States  were  all 
brought  into  immediate  contact  with  the  authority, 
and  were  secured  in  the  protection  of  the  United 
States,  by  the  Constitution.  A  leading  and  control 
ling  principle  of  the  new  Constitution  was  the  dis 
carding  of  intercessors,  mediators,  or  procureurs  be 
tween  the  people  and  the  Government  otherwise 
than  as  representatives  duly  chosen.  .  .  .  The  result 
of  the  inquiry  we  have  made  shows  that  the  immu 
nity  of  sovereigns  from  civil  suits,  unless  when  they 
consent,  is  universally  enjoyed,  and  that  the  States 
of  the  Union  from  the  time  of  their  Declaration  of 
Independence  have  asserted  and  enjoyed  this  im 
munity,  except  in  cases  of  controversies  with  one 
another  in  respect  to  their  boundaries  and  jurisdic 
tion.  There  is  no  instance  of  a  suit  commenced  on  a 
contract,  the  performance  of  a  debt  or  duty.  The 


LAST  YEARS  AT  THE  BAR          247 

claim  made  in  this  bill  when  fully  considered  is  that 
there  is  no  power,  privilege,  immunity,  or  right  of  a 
State  which  may  not  be  subordinated  to  a  judgment 
or  decree  of  this  Court  at  the  suit  of  another  State, 
and  there  is  no  restraint  upon  one  State  from  acquir 
ing,  by  contract  or  convention,  causes  of  suit 
against  another  State,  the  effect  of  which  will  be  to 
change  the  Union  of  the  United  States  into  a  Re 
public  like  that  of  France,  composed  only  of  de 
partments,  cantons,  and  communes.  ...  A  vast 
change  would  take  place,  not  only  in  the  Court  but 
in  the  Government.  A  transformation  from  anal 
ogous  conditions  occurred  in  the  mediaeval  epoch, 
both  in  England  and  France,  in  the  contest  of  the 
monarchs  with  the  feudal  chiefs  and  with  the 
Church.  Guizot  tells  us  how  the  lawyers  became 
efficient  and  admirable  instruments  in  the  hands  of 
royalty,  and  that  with  regard  to  government  in 
general  and  judicial  affairs  in  particular,  they  es 
tablished  principles  contrary  to  liberty.  So,  De 
Tocqueville  admonishes  such  sovereign  jurisdic 
tions  to  control  their  centralizing  proclivities  and 
the  ambition  of  fixing  novel  desires  and  fanciful  ex 
pectations  that  are  diffused  among  the  people  upon 
themselves,  by  making  their  rule  too  attractive  and 
advises  that  the  safe  and  honest  line  of  conduct  is  to 
advise  their  subjects  to  take  care  of  themselves." 
He  insists  that  the  "  contract  must  be  understood 
in  the  sense  which  accords  with  the  public  order 
among  the  parties,  when  and  where  it  was  made, 
and  with  their  maxims  of  law  and  the  order  of  their 
jurisdiction.  The  bonds  in  suit  were  issued  by  the 


248       JOHN  ARCHIBALD  CAMPBELL 

authorities  of  the  State  of  Louisiana  when  there  was 
a  condition  bordering  on  anarchy  and  civil  war  and 
which  continued  for  some  tune  afterward.  When 
issued  their  market  value  was  not  more  than  one 
half  of  the  sum  for  which  they  were  given.  The  hold 
ers  knew  that  there  was  no  coercive  power  to  enforce 
their  payment.  Every  purchaser  invested  under  a 
hope  of  exorbitant  profit  and  this  profit  was  the 
evidence  of  hazard.  ...  It  can  hardly  be  supposed 
that  the  clause  in  the  Constitution  under  considera 
tion  was  inserted  to  enable  a  State  to  secure  for  her 
citizens  the  profits  they  hoped  to  make  by  adven 
tures  in  depreciated  securities  of  States  at  the  Stock 
Exchange. " 

Mr.  William  A.  Maury  says:  " Judge  Campbell 
displayed  the  same  remarkable  ability  and  research 
as  he  had  shown  in  the  Slaughter-House  cases  some 
years  before  (1872).  He  left  nothing  to  be  said  or  de 
sired,  on  the  rationale  of  the  governmental  exemp 
tion  from  suit.  I  may  say,  without  the  slightest  im 
propriety,  I  hope,  touching  his  argument  in  those 
cases,  that  I  heard  a  member  of  the  Court  before 
which  they  were  argued,  who  was  not,  however,  one 
of  its  members  when  the  Slaughter-House  cases 
were  before  it,  say  that  Judge  Campbell's  argument 
in  the  Louisiana  cases  was  the  greatest  he  had  heard 
since  he  was  a  member  of  the  Court."  1 

Senator  Gibson,  who  met  at  a  dinner  in  Washing 
ton,  the  Justices  of  the  Supreme  Court,  wrote  that 
Justice  Horace  Gray  said  that  the  argument  made 
by  Judge  Campbell,  the  day  before,  in  the  Louisiana 

1  Memorial  Addresses  —  Justice  Campbell. 


LAST  YEARS  AT  THE  BAR          249 

case  was  "the  greatest  he  had  listened  to  in  his  life. 
That  he  had  been  Chief  Justice  of  Massachusetts 
eighteen  years  and  had  never  listened  to  such  a  pro 
found  argument  as  that  of  Judge  Campbell. "  Jus 
tice  Miller,  who  was  present,  concurred  with  Justice 
Gray,  and  Chief  Justice  Waite  said  that  it  was  the 
greatest  argument  he  had  ever  heard  in  a  court  of 
justice.  Justices  Field  and  Blatchford  concurred  in 
this  estimate  of  Judge  Campbell's  argument.1 

Mr.  Bancroft  wrote,  "I  know  not  whether  to  ad 
mire  it  most  for  its  exposition  of  the  Constitution, 
or  its  general  ability  and  truth-seeking  thought. " 
The  Honorable  Thomas  J.  Semmes  said:  "I  heard 
the  argument.  The  courtroom  was  crowded  with  dis 
tinguished  auditors.  The  Court  and  audience  lis 
tened  with  rapt  attention  to  the  great  lawyer,  as  he 
demolished,  one  after  another,  the  propositions  of 
his  antagonists.  ,  .  .  His  splendid,  luminous  argu 
ment,  which  for  erudition,  research,  breadth  of  view, 
political  and  historical  knowledge  and  constitu 
tional  lore  surpassed  any  I  ever  heard.7'  2 

Judge  Campbell  regarded  his  argument  in  this 
case  as  the  culmination  of  his  professional  efforts 
and  the  result  the  great  achievement  of  his  life- 
work,  the  maintenance  by  the  Supreme  Court  of 
the  immunity  of  the  States  from  suit  without  their 
consent  as  inherent  in  their  political  sovereignty. 
The  bills  were  dismissed,  Chief  Justice  Waite,  writ 
ing  the  opinion,  sustaining  Judge  Campbell's  posi 
tion.  While  the  attempt  to  bring  States  before  the 

1  Washington  correspondent,  New  Orleans  Picayune. 

2  Memorial  Addresses  —  Justice  Campbell. 


250      JOHN  ARCHIBALD  CAMPBELL 

Court,  through  the  medium  resorted  to  in  these 
cases,  has  not  been  repeated,  the  contentions,  by 
Judge  Campbell,  that  such  a  claim  was  not  within 
the  constitutional  grant  of  power  to  sue  a  State  and 
that  causes  of  controversy  could  not  be  acquired  by 
another  State  by  assignment,  were  rejected  in  South 
Dakota  vs.  North  Carolina.1  Justice  White  strongly 
dissented  from  this  decision,  in  which  he  was  joined 
by  Chief  Justice  Fuller  and  Justices  McKenna  and 
Day. 

In  the  Tennessee  Bond  cases,2  Judge  Campbell, 
representing  several  of  the  railroad  companies,  par 
ties  to  the  litigation,  was  associated  with  a  number  of 
the  most  eminent  lawyers  of  the  country  represent 
ing  other  companies.  The  controversy  involved 
large  interests  and  presented  a  number  of  novel  and 
interesting  questions.  Judge  Campbell's  printed 
arguments  for  the  several  companies  which  he  rep 
resented  contain  exhaustive  discussion  of  the  facts 
and  quotations  from  American,  English,  and  Conti 
nental  decisions  and  textbooks,  including  the  In 
stitutes  of  Menu.  Referring  to  his  association 
with  Judge  Campbell  in  these  cases,  Judge  George 
Hoadly  said:  "I  know  him  well  as  the  defeated 
knows  the  conqueror,  for  in  two  of  the  most  mem 
orable  cases  of  my  life  I  was  the  captive  of  his 
bow  and  spear. " 

Judge  Campbell  was  of  counsel  for  defendant  in 
the  case  of  Stone  vs.  Farmers'  Loan  &  Trust  Com 
pany,  reported,  together  with  several  other  cases 
relating  to  the  same  subject,  as  the  "  Railroad  Com- 

1  192  U.S.  286.  2  114  U.S.  663. 


LAST  YEARS  AT  THE  BAR          251 

mission  Cases."  1  This  litigation  grew  out  of  the 
movement  in  the  Southern  and  Western  States  to 
control  through  the  medium  of  commissions  the 
operation  of  railroad  companies,  especially  in  fixing 
rates  of  charges  for  freight  and  passengers.  The 
questions  discussed  in  the  argument  and  decision  of 
these  cases,  although  at  that  time  unsettled  and  of 
far-reaching  importance,  have,  by  a  series  of  deci 
sions,  passed  into  the  history  of  our  State  and  Na 
tional  jurisprudence.  Judge  Campbell,  as  was  his 
custom,  discussed  the  questions  presented  from 
every  viewpoint.  In  maintaining  the  primary  propo 
sition  that  the  right  to  fix  tolls  and  rates  was  vested 
in  the  corporation  by  its  Charter,  and  removed  from 
the  regulative  power  of  the  Legislature  by  the  con 
tract  clause  of  the  Constitution,  as  construed  in  the 
Dartmouth  College  cases,  Judge  Campbell,  to  some 
extent,  encountered  the  principle  for  which  he  con 
tended  in  his  dissenting  opinions  in  Bank  vs.  Knoop 
and  Dodge  vs.  Woolsey.  While  in  this  series  of  deci 
sions,  beginning  with  Munn  vs.  Illinois,2  the  Dart 
mouth  College  case  has  not  been  overruled,  the 
Court  has,  by  expanding  the  principles  of  the  com 
mon  law  subjecting  public  service  corporations  to 
legislative  control,  very  materially  narrowed  its 
scope  and  restricted  its  effect.  The  legislation  giving 
expression  to  the  demand  of  the  people  for  fair  rates 
and  reasonable  facilities  for  transportation  of  freight 
and  passengers,  enforced  by  the  decisions  of  the 
Court,  constitutes  one  of  the  most  interesting  and 
important  chapters  in  our  National  life.  The  danger, 
1  116  U.S.  307.  *  94  U.S.  113. 


252      JOHN  ARCHIBALD  CAMPBELL 

of  which  Judge  Campbell  gave  warning  in  his  dis 
senting  opinion,  of  the  effort  of  corporations  "to 
ignore  the  fundamental  laws  and  institutions  of  the 
State  and  to  subject  the  highest  popular  interest  to 
their  central  boards  of  control/'  had  been  realized. 
The  power  reserved  to  the  legislatures  of  the  States 
to  control  public  service  corporations  and  confine 
them  in  their  operations  to  reasonable  regulations, 
is  now  firmly  established  in  our  jurisprudence.  It 
has  passed  beyond  the  field  of  controversy,  but  at 
the  tune  of  the  argument  and  decisions  of  the  "  Rail 
road  Commission  Cases  "  many  questions  in  respect 
to  the  existence  of  the  power  and  the  manner  and 
extent  of  its  exercise  were  unsettled  and  exceed 
ingly  doubtful. 

In  Memphis  &  L.  R.  Railroad  Co.  vs.  Southern 
Express  Company,1  decided  and  reported  together 
with  a  number  of  other  cases  involving  the  same 
question,  known  as  the  "  Express  Company  Cases/' 
Judge  Campbell  was  associated  with  Clarence  A. 
Seward  and  George  F.  Edmunds.  The  controversy 
grew  out  of  the  effort  of  the  express  companies  to 
compel  the  railroad  company  to  extend  to  them  fa 
cilities  for  conducting  their  business.  The  litigation 
was  instituted  in  the  Circuit  Court  by  suits  in 
equity,  seeking  mandatory  injunction  commanding 
the  railroad  companies  to  perform  their  duty  to  the 
complainants.  They  were  heard  by  Justice  Miller 
and  the  Circuit  Judge  sitting  in  the  Circuit  Court, 
where  decrees  were  made  granting  the  relief  de 
manded.  On  appeal,  the  decrees  were  reversed. 
»  117  U.S.  l. 


LAST  YEARS  AT  THE  BAR          253 

Judge  Campbell,  in  his  brief,  gives  an  extended 
and  enlightening  history  of  the  origin  and  growth  of 
the  business  of  common  carriers,  both  freight  and 
express,  in  France  and  England.  His  citations  and 
quotations  from  the  decisions  of  the  courts  of  these 
countries  constitute  a  fund  of  learning  exhibiting 
vast  amount  of  labor  of  investigation  and  reflection. 
To  the  student  interested  in  the  development  of  the 
various  systems  of  transportation  and  the  effort  on 
the  part  of  the  people  through  the  lawmaking  de 
partment  and  the  courts  to  control,  without  de 
stroying,  these  essential  agencies  in  the  growth  of 
modern  life,  the  briefs  prepared  in  these  cases  by 
the  great  lawyers  who  aided  the  courts  are  of  per 
manent  value;  they  are  great  storehouses  of  infor 
mation  and  learning.  Of  necessity,  the  opinions  of 
the  courts  are  abridged  condensations  of  the  argu 
ments  of  lawyers. 

Justice  Miller  dissented  from  the  conclusion 
reached  by  the  majority  of  the  Court.  He  said  that 
"  three  years'  reflection  and  the  renewed  and  able 
arguments  in  the  Supreme  Court'7  had  not  changed 
his  opinion.  Referring  to  the  ultimate  outcome  of 
the  decision  he  said:  "I  am  very  sure  such  a  proposi 
tion  will  not  long  be  acquiesced  in  by  the  great  com 
mercial  interests  of  the  country  and  by  the  public 
whom  both  railroad  companies  and  the  expressmen 
are  intended  to  serve."  Justice  Field  concurred  in 
the  dissent.  In  these  cases  Judge  Campbell  was  op 
posed  by  Judge  John  F.  Dillon,  Sidney  Bartlet,  and 
other  lawyers  of  national  reputation.  The  contro 
versy,  like  that  relating  to  rate-making  and  other 


254      JOHN  ARCHIBALD  CAMPBELL 

questions  involving  the  contest  for  governmental 
control  which  agitated  the  people,  the  legislatures, 
and  the  courts,  has  been,  to  a  large  extent,  removed 
from  judicial  to  administrative  agencies,  State  and 
National. 

Judge  Campbell  argued,  after  he  had  passed  his 
seventieth  year,  a  number  of  his  most  important 
and  difficult  cases.  His  briefs  in  these  cases  exhibit 
an  undiminished  capacity  for  labor  and  thorough 
ness  of  preparation.  The  Tennessee  Bond  cases  and 
Louisiana  Gas  Company  vs.  Louisiana  Light  Com 
pany  were  argued  by  him  at  the  October  Term, 
1884. 1  The  Express  Company  cases  and  Wright  vs. 
Kentucky  and  Great  Eastern  Railroad  Company  2 
were  argued  at  the  October  Term,  1885,  when  he  had 
reached  the  age  of  seventy-four  years.  He  had  lived 
to  realize  his  ideal  of  professional  life  —  six  cases  a 
year  in  the  Supreme  Court  with  ample  time  for 
preparation.  At  that  time  he  had  retired  from  gen 
eral  practice. 

The  Louisiana  Gas  Company  case  was  of  great 
importance  to  the  people  of  New  Orleans,  being  the 
result  of  a  long  and  hotly  contested  litigation  for  the 
privilege  of  furnishing  lights  to  the  city  and  citizens. 
It  began  with  the  "  Attorney-General  on  the  rela 
tion  of  the  Crescent  City  Light  Company  vs.  The 
Louisiana  Gas  Company."  3  In  his  brief  in  this  case 
Judge  Campbell  expresses  indignant  protest  against 
the  attempt  by  the  Attorney-General  to  nullify  an 
act  of  the  Legislature,  enacted  many  years  before, 
granting  the  franchise  to  the  defendant  company, 

1  115  U.S.  650.  2  117  U.S.  1-72.  »  27  La.  Ann.  138. 


LAST  YEARS  AT  THE  BAR  255 

for  the  benefit  of  a  new  company  of  questionable 
origin.  He  insists  that  the  Attorney-General,  on  be 
half  of  the  newly  created  corporation,  has  no  right 
to  attack  the  validity  of  the  original  corporation, 
saying:  "We  do  not  perceive  that  the  Attorney- 
General  has  brought  before  the  Court  any  parties 
interested  in  the  act  or  bound  by  it.  We  do  not  see 
that  any  parties  at  all  be  necessary  if  the  Attorney's 
pretensions  be  admitted.  We  have  sought  in  vain 
for  any  precedent  for  the  judicial  nullification  of  a 
statute  of  the  Legislature. " 

Referring  to  the  course  pursued  by  the  Attorney- 
General  and  the  standard  of  morality  then  prevail 
ing  in  official  circles  in  the  State,  he  says:  "It  is 
rarely  that  men  have  been  willing  to  incur  the  re 
proach  of  attempting  to  involve  a  State  in  so  dis 
graceful  and  discrediting  a  breach  of  public  faith  and 
public  honor  as  the  present.  Some  of  the  cases  aris 
ing  under  legislative  acts,  lately  passed,  which  I 
have  examined,  resemble  those  cases  of  crimen  falsi 
where  captains  or  mates  combine  to  cast  away 
the  ship,  cargo,  and  seamen  to  get  the  insurance 
money  for  themselves — faith,  duty,  obligation,  the 
world's  estimation,  the  approving  conscience,  all 
go  to  the  depths  together  with  the  property  they 
should  have  taken  care  of,  even  to  the  surrender 
or  sacrifice  of  their  own  lives.  These  people  have  a 
very  imperfect  and  confined  idea  of  the  intrinsic 
majesty  of  the  government  and  country  they  belong 
to,  and  if  the  fact  be  that  life  or  property  be  insecure 
in  this  State  it  is  due  to  those  whose  sacred  duty  it 
has  been  to  protect  both.  ...  In  the  year  1870  a 


256      JOHN  ARCHIBALD  CAMPBELL 

band  of  adventurers  caused  to  be  passed,  in  the 
manner  that  such  acts  have  been  notoriously  passed, 
before  and  since,  an  act  entitled,  'An  Act  to  Incor 
porate  the  Crescent  City  Gas  Light  Company.7  The 
duration  of  this  charter  is  fifty  years  from  and  after 
the  date  of  the  expiration  of  the  charter  of  the  New 
Orleans  Gas  Company.  The  monopoly  which  was 
discontinued  by  the  Act  of  1860,  this  band  has 
caused  to  be  granted  to  them.  .  .  .  When  the  At 
torney-General  presumes  to  say  that  the  State  of 
Louisiana  has  an  interest  in  breaking  its  faith,  re 
pudiating  its  contracts,  dishonoring  its  name  by  re 
sorting  to  a  quibbling  plea,  we  feel  bound  to  express 
a  decided  and  emphatic  dissent.  ...  In  the  stock  of 
this  [defendant]  corporation  is  reposed  the  property 
of  the  widow  and  the  orphan.  Brothers  have  given 
it  to  unprovided  sisters.  Mothers  and  fathers  have 
bought  it  for  the  support  of  their  young  daughters. 
The  object  of  this  suit  is  to  make  these  deposits  a 
spoil  and  a  booty  for  the  greedy,  the  depraved,  and 
corrupt."  While  this  is  strong  language  to  be  ad 
dressed  to  the  Supreme  Court  concerning  the  Legis 
lature  and  the  Attorney-General,  it  would  seem  that 
existing  conditions  in  Louisiana  justified  it.1  The 
Supreme  Court  sustained  the  action  of  the  Attorney- 
General  of  Louisiana. 

In  New  Orleans  Gas  Light  Company  vs.  Louisiana 
Light  Company,  Judge  Campbell  was  more  success 
ful  in  protecting  the  rights  of  the  old  company  than 
he  had  been  in  the  State  Court.2 

1  Lonn:  Reconstruction  in  Louisiana,  chap.  n.        2  115  U.S.  650. 


CHAPTER  X 

PERSONAL  CHARACTERISTICS.  INTELLECTUAL  AND 
SOCIAL  TRAITS 

JUDGE  CAMPBELL  inherited  from  his  Highland 
Scotch  ancestors  a  strong  physical  constitution  and 
an  almost  in  exhaustible  capacity,  coupled  with  a 
passion  for  labor.  We  have  given  a  description  of  his 
appearance  and  manner  in  his  young  manhood.  A  dis 
tinguished  lawyer  and  publicist  who,  in  his  earlier 
years  residing  in  Mobile,  saw  much  of  Judge  Camp 
bell,  gives  the  impression  which  he  made  upon  him 
self  and  others.  He  says:  "When  he  came  from  New 
Orleans  to  Mobile,  as  he  often  did  after  the  Civil 
War,  the  people  would  gaze  at  him  as  he  passed 
along  the  streets.  His  personal  majesty  overcame 
you  —  it  was  almost  oppressive,  even  when  he  was 
most  friendly.  His  power  to  labor  was  prodigious, 
his  physical  endurance  was  fortified  by  absolute 
temperance  in  all  things/7  1 

Another,  who  knew  him  well  during  his  residence 
in  New  Orleans,  said:  "He  worked  hard  in  his 
profession,  because  he  loved  knowledge.  He  was  a 
great  reader  of  books,  new  books,  ancient  history, 
fresh  literature,  and  modern  thought.  .  .  .  Work 
constituted  his  happiness.  When  it  was  over  he 
rested.  He  was  serious,  sometimes  imperious.  In 
the  Courts  he  was  best  known.  When  he  would  go 
there  he  would  go  with  the  spirit  of  a  gladiator, 
honorably,  but  fiercely,  to  contest  for  the  prize."  2 

1  Letter  from  the  Honorable  Hannis  Taylor. 

2  Memorial  Addresses  —  Justice  Campbell. 


258       JOHN  ARCHIBALD  CAMPBELL 

His  success  came  as  the  reward  of  patient,  labori 
ous  industry.  He  went  to  the  bottom  of  every  ques 
tion  with  which  he  was  called  upon  to  deal  and  ex 
hausted  every  resource  to  sustain  his  conclusions. 
Mr.  Maury,  referring  to  his  capacity  for  labor  in  the 
last  years  of  his  practice,  said:  "He  has  sometimes 
playfully  confronted  me  with  the  evidence  of  his 
tremendous  industry,  as  if  to  say  that  researches 
that  appalled  younger  men  had  no  terrors  for  him. 
It  was  mainly  by  labor,  incessant  labor,  that  he 
stood  first  at  the  Bar."  1 

Mr.  William  D.  Guthrie,  with  whom  Judge 
Campbell  was  associated  in  the  preparation  of  the 
argument  in  the  Railroad  Commission  cases,  says 
that  Judge  Campbell  expressed  as  his  ideal  of  pro 
fessional  life,  "to  have  six  cases  a  year  before  the 
Supreme  Court  of  the  United  States  and  plenty  of 
time  to  investigate  and  prepare  for  argument.  To 
him  the  administration  of  justice  was  a  great  science 
and  to  the  elucidation  of  its  problems  brought  an  ex 
ceptionally  well-filled  mind  and  indefatigable  labor." 
Chief  Justice  White,  a  young  lawyer  at  the  time  resid 
ing  in  New  Orleans,  says :  "I  recollect  very  well  hear 
ing  him  argue  the  Slaughter-House  cases  and  the  im 
pression  left  on  me  by  that  argument  was  that  he 
was  a  book  man  of  great  reading.  Time  brought  me 
some  personal  association  with  him  and  sowed  the 
seed  of  a  real  personal  affection  which  was  germi 
nated  and  never  died."  2 

Mr.  Henry  P.  Dart,  of  New  Orleans,  whose  "le 
gal  christening  began  with  the  clerical  labor"  in  the 

1  Memorial  Addresses  —  Justice  Campbell. 

2  From  letter  of  Chief  Justice  White. 


PERSONAL  CHARACTERISTICS      259 

preparation  of  the  argument  in  these  cases,  as  a 
junior  in  the  office  of  one  of  the  counsel,  gives  an  in 
teresting  personal  incident  from  which  we  get  an 
impression  of  Judge  Campbell's  appearance  and 
manner.  He  says  that  one  morning  he  met  the  Judge 
"  sitting  at  the  corner  of  Carondelet  and  Canal 
Streets,  on  the  covered  street  hydrant,  munching 
something,  possibly  an  apple;  he  was  'batting'  or 
' beetling'  his  great  eyebrows  and  evidently  in  pro 
found  thought,  as  was  his  habit.  I  never  saw  him 
when  he  did  not  appear  to  be  abstracted  from  his 
surroundings.  I  spoke  to  him  and  he  arose  and  put 
his  arm  in  mine,  and  so  we  journeyed  across  the  big 
street  to  wherever  he  was  going.  He  began  to  talk  to 
me,  stating  some  legal  problem  as  though  he  were 
thinking  aloud,  but  every  now  and  then  stopping 
and  lowering  over  me  with  outstretched  arm  and 
vocal  inquiry,  just  as  he  would  have  emphasized  a 
point  in  an  argument.  Of  course  I  knew  he  was  talk 
ing  at  me  and  not  to  me,  and  the  only  response  ex 
pected  was  a  word  or  two  necessary  to  let  him  catch 
his  breath.  When  I  delivered  him  at  his  destination, 
the  thinking  man  disappeared,  and  his  courtesy  re 
turned  with  an  expression  of  his  happiness  at  the 
opportunity  we  had  had  together,  and  I  may  add, 
he  said  it  as  though  he  believed  it.  But  as  for  me,  it 
was  sufficient  for  the  day  that  I,  a  stripling  at  the 
Bar,  had  walked  down  that  crowded  thoroughfare 
arm  in  arm  with  the  greatest  lawyer  of  the  time,  en 
gaged  in  a  most  profound  and  absorbing,  though 
one-sided,  discussion."  J 

1  Letter  from  Henry  P.  Dart. 


260      JOHN  ARCHIBALD  CAMPBELL 

"He  was  a  man  of  noble  presence  and,  until  his 
powers  began  to  fail  with  increasing  age,  of  great 
physical  power.  His  tall  form,  his  dignified  and 
impressive  presentment,  called  for  immediate  re 
spect,  even  before  the  weighty  argument  required 
assent."  1 

While  visiting  Louisville,  Kentucky,  on  profes 
sional  business,  he  was  described  by  a  newspaper 
correspondent  as  a  man  of  "Scotch  physiognomy, 
toned  down  after  two  or  three  generations  of  Ameri 
can  civilization.  He  has  a  fine  head,  partly  bald,  and 
encircled  with  soft,  white  hair.  He  is  quiet  and  de 
liberate  in  speech,  with  a  musical  voice. " 

The  Washington  correspondent  of  the  "Philadel 
phia  Record "  describes  his  appearance  at  the  time 
he  argued  the  case  of  New  Hampshire  vs.  Louisiana: 
"The  man  who  made  the  argument  was  John  A. 
Campbell,  of  New  Orleans.  He  was  a  member  of  the 
Supreme  Court  of  the  United  States  when  the  most 
famous  of  its  present  members  were  unknown.  He 
held  his  place  until  the  war  broke  out,  and  then  he 
left  the  Union  and  the  Bench,  with  his  State.  He  re 
appeared  after  the  war  as  a  member  of  the  Supreme 
Court  Bar,  with  a  remarkable  practice  even  for  that 
Bar,  of  large  practice  and  great  fees,  and  has  stood 
in  the  front  rank  ever  since.  He  is  a  very  old  man. 
His  form  is  thin  and  bent,  his  skin  is  in  the  parch 
ment  state,  and  his  hair  is  as  white  as  the  driven 
snow;  but  a  great  mind  looks  out  through  his  keen 
eye  and  a  great  soul  controls  his  fragile  body.  He  is 
a  lawyer  to  the  core  —  in  some  respects  one  of  the 

1  Memorial  Addresses  —  Justice  Campbell. 


PERSONAL  CHARACTERISTICS      261 

wisest,  broadest,  deepest,  and  most  learned  in  the 
United  States.  He  has  neither  the  presence,  voice, 
nor  tongue  of  the  orator,  but  when  he  speaks  in  his 
thin,  measured  tones,  never  wasting  a  word,  the 
Supreme  Court  of  the  United  States  listens  as  it  lis 
tens  to  almost  no  other  man.  Mr.  Campbell  is  ab 
sorbed  in  his  work.  He  has  no  eyes  or  ears  for  any 
thing  or  anybody  not  immediately  concerned  in  the 
case  in  hand.  He  lives  quietly  in  New  Orleans,  sur 
rounded  by  one  of  the  finest  law  libraries,  in  all  lan 
guages,  in  the  world.  He  is  a  profound  civil  lawyer, 
with  Justinian  at  his  tongue's  end,  and,  at  the  same 
time,  a  common-law  lawyer,  competent  to  battle 
with  the  best  of  that  class.  His  memory  is  as  wonder 
ful  as  George  Bancroft's.  He  apparently  remembers 
every  scrap  of  law  he  ever  saw  or  heard,  and  he  has 
his  resources  so  classified  and  catalogued  that  he  can 
bring  them  forth  at  will.  .  .  .  Once  retained  in  a  case, 
he  becomes  a  recluse.  When  he  emerges  from  his 
books,  he  has  absorbed  that  case  with  all  its  bear 
ings,  either  his  own  side  or  the  other." 

Judge  Campbell's  mind  was  sound,  his  fiber  tough 
and  his  character  robust.  He  was  clear  in  his 
conceptions,  but  without  imagination.  His  mind  was 
massive  rather  than  analytical.  He  was  earnest  of 
purpose  and  was  loyal  to  client  and  friend.  To  many 
he  seemed  to  have  a  supernatural  power  of  insight 
and  to  be  able  to  extricate  the  unfortunate  from  any 
difficulty.  On  one  occasion  a  colored  woman,  to 
whom  he  had  given  money  to  purchase  freedom  for 
herself  and  family,  when  about  to  die,  said  to  a  good 
woman,  "Put  your  trust  in  God  and  in  Mr.  Camp- 


262      JOHN  ARCHIBALD  CAMPBELL 

bell."  He  was  a  friend  to  the  unfortunate,  tender  to 
children  and  women.  No  deserving  person  ever  ap 
pealed  to  him  for  protection  without  receiving  it.  In 
his  daily  life  he  was  frugal  and  simple,  working  con 
tinuously  but  quietly.  He  was  always  a  great  reader 
and  accumulated  a  large  library  of  both  law  books 
and  general  literature. 

While  there  is  no  evidence  that  Judge  Campbell 
indulged  in  humor  or  light  conversation,  we  have 
the  testimony  of  those  whom  he  met  in  social  rela 
tions  that  he  was  an  interesting  talker.  Mr.  Maury 
says  that  he  had  "in  writing  from  one  of  the  great 
est  living  jurists"  —  then  a  member  of  the  Supreme 
Court  —  his  estimate  of  Judge  Campbell,  as  "one 
of  the  most  interesting  persons  I  ever  knew.  Great 
in  learning,  far-reaching  in  thought,  simple  in  man 
ner,  most  instructive  in  discourse."  1 

Judge  Hoadly,  on  the  same  occasion,  said:  "In 
the  long  discussions,  which,  beginning  at  Memphis, 
carried  us  to  Mobile  and  finally  here  [Washington], 
I  became  his  friend,  and  many  an  otherwise  tedious 
hour  during  that  association  has  he  beguiled  in  high 
discourse  of  the  fall  of  Richmond,  in  which  city  he 
remained  the  sole  surviving  representative  of  the 
Confederate  Government  after  all  others  had  fled; 
of  the  attempts  at  peace  with  Mr.  Lincoln  and  Mr. 
Seward,  at  Hampton  Roads,  and  of  his  services  in 
this  Court."  Judge  Hoadly  gives  an  interesting  ac 
count  of  a  conversation  in  which  Judge  Campbell 
gave  expression  to  his  high  estimate  of  Judge  Cur- 
tis's  service,  not  only  in  the  opinions  which  he  wrote, 

1  Memorial  Addresses  —  Justice  Campbell. 


PERSONAL  CHARACTERISTICS      263 

but  of  the  counsel  and  advice  he  gave  his  associates 
in  the  Conference-Room. 

"Any  one  who  has  heard  him  give  his  reminis 
cences  of  public  men  and  the  stirring  events  which 
happened  in  his  time,  will  agree  in  respect  to  the 
charm  of  his  conversation,  with  its  admixture  of 
humor,  which  latter  a  stranger  would  never  have 
supposed  to  exist  behind  that  cold,  abstracted  ex 
pression,  which  he  generally  wore  in  public."  1 

It  is  interesting  to  have  Judge  Campbell's  esti 
mate  of  some  of  the  men  of  National  reputation  with 
whom  he  was,  at  times,  associated.  Of  John  C.  Cal- 
houn  he  said:  "My  father  was  an  old  friend  of  Mr. 
Calhoun  and  I  had  been  brought  up  to  admire  him. 
When  I  went  to  see  him  at  Washington,  I  appeared 
under  the  patronage  of  my  father's  name,  and  at 
this  distance  he  appears  to  me  to  have  been  a  man 
of  interesting  appearance  and  an  intense  form  of  ad 
dress,  and  after  a  few  lapses,  he  proceeded  upon  me 
with  all  the  earnestness  of  one  addressing  a  popular 
audience.  He  was  more  ardent  than  suited  my  years 
as  compared  with  his,  and,  after  he  had  talked  with 
me,  in  the  wildest  way,  for  some  time,  I  got  the  no 
tion  that  he  was  practicing  something  upon  me. 
Soon  afterwards  he  delivered  a  celebrated  speech  in 
which  I  thought  I  recognized  whole  sentences  as 
what  he  had  declaimed  to  me,  a  mere  young  man. 
Mr.  Calhoun  was  a  man  whose  theories  of  govern 
ment  were  never  reasoned  out  from  what  he  knew, 
but,  in  the  privacy  of  his  closet,  a  priori.  He  grew  in 
love  with  these  ratiocinations  and  was  perfectly 

1  Memorial  Addresses  —  Justice  Campbell. 


264      JOHN  ARCHIBALD  CAMPBELL 

honest  in  his  avowals  of  them,  and  they  struck  many 
good  men  in  his  time  as  true  positions.  He  had  the 
misfortune  of  having  had  the  Presidency  on  the 
brain.  No  man  ever  had  it  worse.  The  loss  of  it  gave 
a  strange  aspect  to  his  later  years  and  made  him  feel 
like  one  who  had  nearly  won  the  imperial  rule  and 
had  lost  it.  He  considered  all  questions  in  the  light 
of  one  who  had  been  discrowned,  and  could  magnify 
his  experience  as  truly  as  if  he  had  spent  a  long 
term  of  actual  sovereignty.  But  his  love  of  country 
under  the  aspects  of  his  mind  was  as  undoubted  as 
that  of  men  who  kept  in  promise  longer. " 

Of  R.  M.  T.  Hunter,  he  said:  "Mr.  Hunter  had 
one  of  the  finest  minds  in  the  South  and  one  of  the 
most  honest  and  beautiful  natures.  You  will  recol 
lect  that  he  was  never  famous  for  the  violence  of  his 
opinions,  but  sought,  within  his  opportunities,  to  do 
the  best  for  his  people  and  give  direction  to  the 
country  under  its  old  conditions  according  to  the 
truest  civilization  of  which  he  was  capable.  I  have 
known  him  in  captivity,  when  our  misfortunes 
pressed  equally  upon  us,  and  around  us,  and  learned 
to  love  him.  He  has  time  enough  on  his  side  of  the 
clock  to  be  of  some  influence,  and  one  of  the  speeches 
which  he  made  during  the  last  campaign  was  pleas 
ing  to  me  because  it  showed  that  he  retained  the 
vigor  and  health  of  his  mind.77 

An  interesting  side-light  is  cast  by  Judge  Camp 
bell  upon  James  M.  Mason,  accompanied  by  an  in 
cident  which  shows  the  kindly  consideration  for  his 
wife.  He  says:  " Mason's  domestic  life  was  pecul 
iarly  beautiful.  He  married  the  daughter  of  Colonel 


PERSONAL  CHARACTERISTICS      265 

Chew,  who  owned  the  mansion  and  ground  where 
the  battle  of  Germantown  raged  in  the  Revolution 
ary  War.  After  Richmond  was  evacuated,  I  re 
mained  in  the  city  until  it  filled  up  with  the  troops 
of  the  United  States,  and,  as  soon  as  I  had  a  little 
repose,  I  set  forth  to  inquire  into  the  condition  of 
my  neighbors  who  remained.  I  went  to  the  house  of 
Mrs.  Mason  and  she  told  me  that  she  had  destroyed 
in  the  grate  fire  all  of  the  letters  which  her  husband 
had  written  to  her  in  the  thirty  years,  or  so,  of  their 
married  life.  In  all  that  time,  she  said,  that  Mr.  Ma 
son  was  never  out  of  her  company  a  day  but  he 
wrote  her  a  letter  with  punctuality,  and  when  he 
was  Senator  in  Washington  the  school  exercises  of 
his  daughters  were  mailed  to  him  every  day  in  the 
week  and  were,  by  him,  corrected  and  returned.  Mrs. 
Mason  had  kept  her  husband's  letters,  but  believ 
ing  that  the  soldiers  would  ransack  her  house  she 
had  made  the  sacrifice  of  committing  them  to  the 
flames.  She  had  also  destroyed  many  souvenirs, 
precious  to  her  in  a  domestic  way,  but  here  was  a 
sword  given  to  her  father  by  General  Washington, 
which  she  desired  me  to  take  and  conceal,  for  she 
thought  her  husband's  house  was  more  exposed  to 
peril  than  my  own.  I  was  not  very  firm  in  my  mind 
about  carrying  a  weapon  through  the  streets,  but 
she  solicited  me  so  earnestly  that  I  put  the  weapon 
under  my  cloak  and,  wrapping  the  cloak  around  me, 
walked  through  the  city  touched  by  the  soldiers  on 
almost  every  side.  When  I  got  home,  I  put  the  sword 
up  in  the  top  of  the  house  among  the  rafters  and 
kept  it  there  until  I  could  return  it  with  safety." 


266      JOHN  ARCHIBALD  CAMPBELL 

Of  William  A.  Graham  he  said:  "Mr.  Graham 
never  was  a  friend  of  secession.  .  .  .  He  is  a  man  of 
the  finest  character,  the  finest  nature  and  that  sort 
of  noble,  gentle  influence  which  is  just  now  needed 
in  the  South.  For  him  I  feel  a  desire  that  he  should 
be  recovered  to  the  country,  and  if  it  could  be  done 
at  my  wish  I  would  have  contributed  something 
again  to  the  restoration  of  the  Union." 

In  one  of  his  briefs  he  refers  to  Chief  Justice  Eus- 
tis  of  Louisiana  as  one  "whose  name  is  most  honor 
ably  associated  with  the  development  of  the  science 
of  jurisprudence  in  Louisiana  —  a  judge  of  great 
learning  and  practical  ability  —  a  lawyer  who  pre 
served  at  the  bar  the  candor,  fair-mindedness,  the 
love  of  truth,  and  the  desire  for  justice  which  befits 
the  judge." 

Judge  Campbell  had  a  remarkable  capacity  for 
using  strong,  pregnant,  and  caustic  language.  This 
is  evidenced  by  a  few  illustrations.  In  his  argument 
before  Justice  Bradley,  sitting  in  the  Circuit  Court 
in  Wood  vs.  Howard  (1871),  he  said: 

"In  the  Eighth  Circle  of  the  Inferno  is  a  place  re 
served  for  those  people  who  traffic  in  the  public  in 
terest  for  their  own  private  advantage.  Those  whose 
'no'  is  quickly  changed  to  'aye'  for  lucre  have  a 
place  in  the  great  circle,  and  maybe  some  of  those 
who  occupy  the  opposite  ends  of  this  Capitol,  and 
have  seats  in  the  State  Legislatures,  shall  find  in  the 
end  some  accommodation  there.  The  Malebolge  is  a 
dark  and  dreadful  lake  of  a  thick  glutinous  mass 
which  on  every  side  belimes  the  shore  and  demons 
watch  its  wretched  inmates  with  seething  forks  to 


PERSONAL  CHARACTERISTICS      267 

press  them  down,  should  they  uplift  their  heads 
above  the  surface,  so  that  if  steal  they  can,  it  shall 
be  out  of  view. 

"This  open,  flagrant,  public,  shameless  traffic,  in 
acts  of  legislation,  in  corporate  rights  obtaining 
monopolies  and  exclusive  grants  of  the  public  do 
main  of  various  kinds,  infringing  the  personal  rights, 
the  individual  rights  of  men,  by  bribes  and  corrup 
tion,  is  the  most  frightful  of  all  the  circumstances 
that  attend  the  present  condition  of  society." 

A  lawyer  sued  for  damages  for  the  occupation  and 
closing  by  a  railroad  company  of  a  part  of  a  street 
on  which  his  office  was  located,  alleging  that  he  lost 
clients.  Judge  Campbell  said:  "The  plaintiff  was 
examined  on  his  own  behalf  as  a  witness.  He  did  not 
give  testimony  of  a  single  client  he  had  ever  had,  or 
he  had  ever  lost.  No  lawyer  but  himself  had  ever 
had  an  office  in  that  section  of  the  city.  No  one  had 
ever  seen  him  attending  a  case  in  the  courts.  No  cus 
tom  or  clientage  has  been  withdrawn  from  him  by 
any  act  of  the  defendants.  His  loss,  as  set  forth  in 
his  pleading,  is  like  some  experiments  on  certain 
bodies  which  show  a  loss,  or  rather  an  apparent  loss, 
of  weight  which  they  never  had." 

In  the  same  case  a  number  of  owners  of  coffee 
houses,  saloons,  restaurants,  and  lodging-houses 
testified  to  a  diminution  of  their  profits  and  rents. 
Judge  Campbell  said:  "Father  Matthew  has  not 
been  so  successful  in  suppressing  intemperate  drink 
ing  of  poisonous  liquors,  if  this  testimony  can  be  be 
lieved.  The  whole  of  this  salutary  effect  is  ascribed 
to  these  depots  and  yards." 


268      JOHN  ARCHIBALD  CAMPBELL 

Discussing  an  act  of  the  Legislature  prohibiting 
the  courts  from  enforcing  the  collection  of  taxes,  he 
said:  "The  General  Assembly,  to  manifest  the  in 
tensity  of  their  purpose,  proceeded  to  mutilate  the 
jurisdiction  of  the  judicial  tribunals  and  pronounces 
an  interdict  on  them  in  this  remarkable  language: 
'It  shall  be  hereafter  incompetent  for  any  Court  to 
mandamus  the  officers  of  the  City  to  levy  and  col 
lect  any  interest  tax  (other  than  those  provided  in 
this  Act),  or  in  case  of  such  mandamus  by  a  Re 
ceiver  or  otherwise  to  direct  the  levy  and  collection 
of  such  tax/  Thus  it  is  that  '  Dishonor  mangles  true 
judgment  and  bereaves  the  State  of  that  integrity 
which  should  become  it;  not  having  the  power  to  do 
the  good  it  would,  for  the  ill  which  doth  control  it."J 

Again  he  says:  "The  Legislature  and  the  Council 
both  decided  that  a  financial  system  which  deferred 
payments  so  that  instability,  uncertainty,  the 
chances,  and  peradventure  the  fraudulent  manipu 
lation  of  a  lottery  wheel  were  to  determine  who 
should  be  paid  and  what  should  be  paid,  was  the 
best;  that  the  old  ideas  of  exactness,  punctuality, 
and  strict  honesty  had  become  obsolete  and  were 
not  suited  to  the  fashions  of  the  day,  nor  to  any  hab 
its  of  their  own.  .  .  .  Fortunately  for  the  country, 
such  crooked  wisdom  denominated  by  Lord  Bacon 
as  ' cunning'  was  overruled  in  advance  by  the  fram- 
ers  of  the  Federal  and  State  Constitutions.  By  the 
Act  of  1876  the  Louisiana  Legislature  smites  to  the 
heart  the  contract  made  with  the  holders  of  the  con 
solidated  stock,  and  destroys  at  once  the  obligation 
of  the  contract  and  shuts  all  the  avenues  to  the 


PERSONAL  CHARACTERISTICS      269 

Courts  and  deprives  the  Courts  of  all  their  motive 
power  to  afford  redress.  Jack  Cade,  assuming  that 
the  laws  of  England  should  only  come  from  his 
mouth,  and  all  past  records  must  be  burnt,  seems  to 
have  been  the  model  before  their  eyes.  The  Consti 
tution  and  laws  under  it  were  regarded  as  cobwebs 
to  be  brushed  away  with  their  potential  hands. " 

To  permit  the  intervention  of  one  bondholder  he 
says  would  be  "to  ventilate  his  notions  of  municipal 
obligations  and  might  convert  the  Court  into  a 
mass  meeting  for  the  manifestation  of  popular  pas 
sions  instead  of  being  a  place  where  justice  is  judi 
cially  administered."  1 

He  thus  describes  what  he  foresees  as  the  result 
of  regulating  railroads  by  the  Government:  " There 
would  be  a  demand  for  railroad  tracks  that  were 
horizontal  and  without  curves,  with  Pullman  cars 
and  conductors,  and  the  fulfillment  of  Jack  Cade's 
promise  that  claret  or  other  favorite  beverages 
would  flow  in  currents  through  conduits  in  all  pas 
senger  coaches,  and  the  fares  placed  at  a  mill  a  mile. 
This  would  be  an  approximation  to  a  democratic 
way  when  the  world  would  circulate  at  the  cost  of 
the  world." 

In  his  argument  in  New  Hampshire  vs.  Louisiana, 
he  said:  "The  Bill  seems  to  assume  that  the  States 
of  the  Union  have  been  set  at  large  to  carry  on  a 
universal  traffic,  and  that  this  Court  has  been  spe 
cially  appointed  to  facilitate  their  commercial  oper 
ations;  that  the  State  is  a  corporation  composed  of 
individual  traffickers;  that  the  facilities  of  the  State 

1  Louisiana  vs.  Pillsbury,  105  U.S.  278. 


270      JOHN  ARCHIBALD  CAMPBELL 

are  for  the  use  of  these  collectively  or  separately; 
and  whatever  right  or  interest  one  has,  or  will  have, 
may  be  asserted  in  this  Court  in  the  corporate  name. 
.  .  .  The  ubiquity  and  unity  of  the  powers  of  the 
Court  in  the  exercise  of  original  jurisdiction;  the 
absoluteness  and  ultimity  of  its  judgments  and  de 
crees;  the  close  relation  of  the  Court  with  the  other 
departments  of  the  Government;  the  control  of  the 
place  of  its  sessions,  combine  to  render  such  a  juris 
diction  pleasant  and  alluring  to  suitors  and  attor 
neys.  ...  It  is  a  fact  that,  in  respect  to  the  twenty- 
two  billion  and  a  half  dollars  that  the  States  of  the 
world  owe,  there  is  no  remedy  by  suit  for  the  collec 
tion  of  any  portion.  I  suppose  there  is  not  a  suit 
pending  for  any  portion,  except  this  suit  of  New 
Hampshire  vs.  Louisiana  for  the  sum  of  two  hundred 
and  ten  dollars,  and  costs." 

In  Stone  vs.  Farmers'  Loan  Association  he  said: 
"The  predominant  opinion  among  statesmen  and 
publicists  is  that  the  germinal  point  of  all  riches  is 
to  be  found  in  the  labor  of  men;  and  that  the  most 
sacred  of  all  property  is  that  right  of  a  man  to  labor 
for  himself.  Slavery  consists  in  the  compulsion  of 
one  man  to  labor  for  another  against  his  will  and  for 
the  emolument  of  that  other.  The  withdrawal  from 
one  man  or  an  association,  of  their  faculties,  of  their 
employment  of  strength,  dexterity,  address,  or  ca 
pacity,  or  to  coerce  their  employment  upon  con 
ditions  to  which  they  have  not  consented  and  to 
apply  the  proceeds  to  another,  contravenes  and  con 
flicts  with  those  assertions  of  right  which  are  placed 
as  a  frontispiece  to  the  American  Constitution." 


PERSONAL  CHARACTERISTICS      271 

Describing  the  political  conditions  from  which 
the  Crescent  City  Slaughter-House  Company  de 
rived  its  charter,  he  said:  "The  Fourteenth  Amend 
ment  contemplated  the  adoption  of  what  is  called 
universal  suffrage,  and  that  has  been  compelled. 
The  force  of  universal  suffrage  in  politics  is  like  gun 
powder  in  war,  or  steam  in  industry.  In  the  hands  of 
power,  and  when  the  population  is  incapable  or 
servile,  power  will  not  fail  to  control  it;  it  is  irresisti 
ble.  Whatever  ambition,  avarice,  usurpation,  servil 
ity,  licentiousness,  or  pusillanimity  need  a  shelter 
will  find  it  under  its  protecting  influence.  Besides,  in 
a  large  section  of  the  United  States,  the  flower  of  the 
virile  population  had  perished  in  the  interstates  war. 
A  large  portion  of  its  dominant  population  will  be 
disfranchised  by  the  Third  Section  of  the  Article. 
In  that  region  there  had  been  a  subversion  of  all  the 
relations  in  society  and  a  change  in  social  order  and 
condition;  while  in  the  other  section  there  had  been 
a  great  accumulation  of  capital  and  credit;  shame 
ful  malfeasance  had  become  very  common  and  there 
had  been  an  effusion  over  the  whole  land  of  an  alert, 
active,  aspiring,  overreaching,  unscrupulous  class  — 
the  foulest  offspring  of  the  war  —  who  sought 
money,  place,  and  influence  in  the  worst  manner 
and  for  purposes  entirely  mischievous.  Their  associa 
tions  were  formed,  not  for  such  mutual  advantage 
as  is  consistent  with  law,  but  for  the  execution  of 
rapines  that  the  laws  prohibited.  A  wise  and  provi 
dent  statesman  would  have  found  in  the  facts 
before  him,  and  the  fact  that  a  vast  development 
was  taking  place  constantly  leading  to  other  and 


272       JOHN  ARCHIBALD  CAMPBELL 

perhaps  greater  mutations  in  society,  an  occasion 
for  strenuous  and  patriotic  exertion  of  his  noblest 
powers." 

Following  a  description  of  the  character  of  the 
men  dominating  the  Government  of  the  State  he 
said:  "It  would  be  too  high  and  honorable  a  name 
to  impute  this  act  and  many  others  of  the  same 
character  to  a  result  of  ambition  or  usurpation,  a 
love  of  power,  or  to  introduce  some  broad,  though 
erroneous,  principle  into  the  administration  of  the 
Government.  We  believe  it  to  be  a  mere  trade  be 
tween  the  members  of  the  Legislature  and  the  cor 
poration  for  the  passage  of  the  Act.  The  contents  of 
the  Act  were  matters  of  supreme  indifference.  .  .  . 
The  value  received  by  the  members,  not  that  to  be 
obtained  by  the  public,  dictated  the  legislation  and 
administration. "  * 

Judge  Campbell  never  applied  to  Congress  to 
have  removed  the  political  disabilities  imposed  upon 
him  by  the  Fourteenth  Amendment,  although  as 
sured  that,  upon  his  request,  Congress  would  read 
ily  do  so.  He,  therefore,  took  no  other  part  in  poli 
tics  than  as  a  citizen  interested  in  the  welfare  of  his 
State  and  country.  In  the  contest  for  the  electoral 
vote  of  Louisiana  in  1876,  William  Pitt  Kellogg 
sought  to  employ  him,  but  he  refused,  saying:  "I  do 
not  want  your  case.  I  do  not  want  your  money."  He 
appeared  with  Judge  Black  and  other  eminent 
counsel  in  behalf  of  the  State  before  the  Electoral 
Commission.  An  extract  from  his  argument  is  illus 
trative  of  his  power  to  deal  in  strong  language  when, 

1  Lonn:  Reconstruction  in  Louisiana,  42. 


PERSONAL  CHARACTERISTICS      273 

in  his  judgment,  the  cause  justified  him  in  doing  so. 
Denouncing  men  who  had  seized  the  State  Govern 
ment  and  prostituted  their  power  he  said:  "The 
Court  must  observe,  from  what  I  have  already  ex 
hibited  of  the  laws  of  the  State,  that  the  State  is  in 
possession  of  an  oligarchy  of  unscrupulous,  dishon 
est,  corrupt,  overreaching  politicians  and  persons 
who  employ  the  powers  of  the  State  for  their  own 
emolument.  There  is  no  responsibility  on  their  part 
to  any  moral  law  or  constitutional  or  legal  obliga 
tions.  For  years  they  have  usurped  the  powers  of  the 
State  by  means  that  have  brought  upon  them  the 
condemnation  of  the  Senate  of  the  United  States,  of 
the  House  of  Representatives  of  the  United  States, 
and,  I  may  say,  of  the  whole  people  of  the  United 
States.  These  practices  have  been  covered,  immun 
ity  has  been  granted  to  them,  because  of  their  inter 
course  and  connection  with  the  polities  and  the 
parties  of  the  Union;  without  that  connection  they 
would  not  stand  in  that  State  for  a  single  hour.  By 
their  association  they  have  prostituted  every  mate 
rial  and  endangered  every  moral  interest  within  the 
limits  of  the  State/'  1 

Judge  Campbell  did  not  engage  in  controversy 
regarding  the  results  of  the  war  nor  the  political  con 
ditions  which  prevailed  in  the  South  during  the  re 
construction  period.  Like  many  of  the  wisest  South 
ern  men  he  waited  patiently  for  the  passions  of  the 
day  to  pass  away,  trusting  that  the  patriotic  men  of 
both  sections  would,  with  experience,  come  to  a 
clearer  view  and  a  better  state  of  mind.  The  only 

1  Report  of  the  Electoral  Commission. 


274       JOHN  ARCHIBALD  CAMPBELL 

expression  of  opinion  upon  the  " negro  question" 
which  he  appears  to  have  given  is  found  in  an  inter 
view,  while  in  Louisville,  Kentucky,  in  which  he  is 
thus  quoted:  "As  to  the  negro  with  the  ballot  in  his 
hands,  Judge  Campbell  expressed  no  resentment, 
nor  feeling  of  reaction  on  the  subject,  but  said  it  was 
truly  a  sore  matter  in  the  present  condition  of  the 
South,  because  it  rendered  the  efforts  of  what  good 
men  remained,  abortive  to  restore  solvency  to  the 
exchequer  of  the  Southern  States  and  to  lead  the 
general  mind  to  the  consideration  of  new  issues.  He 
intimated  that  in  the  States  where  the  black  vote 
was  representative,  nothing  important  in  either 
Northern  or  Southern  society  had  much  chance  to 
be  brought  to  the  court  of  public  reason." 

Among  the  incidents  illustrative  of  his  character, 
Major  H.  C.  Semple  tells  of  seeking  to  employ  him 
in  behalf  of  a  friend  who  had  been  sued  for  a  large 
amount  on  account  of  liability  as  stockholder  in  a 
bank,  prior  to  the  Civil  War.  The  Circuit  Court  had 
decided  the  case  against  him.  To  Major  Semple's 
request  that,  as  Pollard,  his  client,  was  now  a  poor 
man,  the  Judge  would  accept  a  moderate  retainer, 
he  responded,  "No,  I  will  not.  I  do  not  accept  mod 
erate  retainers.  I  cannot  afford  it;  but  I  cannot  af 
ford  to  accept  any  retainer  from  Pollard,  if  he  is 
poor.  He  attended  upon  me  when  I  was  married." 
He  won  the  case.1 

On  February  22,  1824,  the  Executive  Committee 
of  the  Alabama  State  Bar  Association  addressed  to 
Judge  Campbell  an  invitation  to  deliver  the  Annual 

1  Bailey  vs.  Pollard,  20  Wall.  520. 


PERSONAL  CHARACTERISTICS       275 

Address  at  its  meeting  on  August  7  of  that  year. 
Following  an  expression  of  their  appreciation  of  his 
accomplishments  as  a  jurist,  eminence  as  a  citizen, 
and  character  as  a  man,  the  Committee  concluded: 
"The  Association  feels  a  special  pleasure  in  know 
ing  that  this  choice  is  one  on  whom  the  esteem  and 
affection  of  the  people  of  Alabama  have  so  long 
rested,  that  they  have  not  ceased  to  claim  him  as 
one  of  their  own."  Acknowledging  the  receipt  of  the 
invitation,  with  expressions  of  grateful  appreciation 
of  the  sentiment  in  which  it  was  extended,  he  said: 
"I  have  been  much  affected  by  the  terms  of  your 
letter  and  it  is  difficult  for  me  to  make  the  answer  it 
merits  from  me.  Fifty-four  years  ago  to-day,  I  ar 
rived  at  your  city  of  Montgomery,  at  that  date  a 
village,  upon  the  opening  of  the  Spring  Term  of  the 
Circuit  Court.  .  .  .  The  father  of  one  of  your  Com 
mittee  moved  for  my  admission  and  I  thus  became 
a  member  of  the  Bar  of  Alabama." 

Expressing  doubt  of  his  ability,  by  reason  of  his 
advanced  age  and  physical  condition,  to  appear  in 
person,  he  promised,  if  able,  to  prepare  an  address 
and  submit  it  to  the  Committee.  This  he  did.  The 
address  is  devoted  to  personal  and  professional  remi 
niscences,  an  interesting  historical  review  of  events 
in  Alabama  during  the  half-century,  and  closed  with 
an  appeal  to  the  members  of  the  Bar  to  "  stand  fast 
in  the  liberty  wherewith  you  became  free,  and 
which  the  Constitution  has  been  the  witness.  Be 
constant  and  firm  to  insist  that  the  State  shall  be 
maintained  in  the  fullness  of  the  powers  reserved  by 
the  Constitution  which  was  made  by  the  people  of 


276       JOHN  ARCHIBALD  CAMPBELL 

the  States.  The  State  is  the  repository  where  the 
family  is  formed,  and  with  this,  the  source  of  do 
mestic  peace,  where  religion,  morality,  reverence, 
honor,  human  affections  are  implanted  and  in 
struction  most  purely  imbibed.  It  is  the  State 
that  most  surely  defends  life,  liberty,  property, 
family  obligations  and  rights;  it  is  the  State  that 
teaches  primary  duties  of  manhood  and  which 
shields  and  protects  womanhood  in  her  purity  and 
holiness." 

In  this,  his  last  public  word  expressive  of  love  for 
the  State  and  admonition  to  her  lawyers  and  citi 
zens,  he  was  consistent  with  what  he  had  taught  by 
precept  and  example  —  his  devotion  to  the  State 
and  its  place  in  the  American  political  and  social 
system.  For  the  integrity  of  the  rights  of  the  State 
and  in  obedience  to  what  he  conceived  his  alle 
giance  to  her,  he  was  ready  to  sacrifice  place  and 
position,  to  suffer  misrepresentation  and  calumny 
to  keep  faith  with  his  political  integrity,  although  to 
his  own  hindrance. 

On  February  13,  1884,  Mrs.  Campbell  died.  One 
who  knew  husband  and  wife  during  the  years  of 
their  married  life  said  of  them:  " Talented,  amiable, 
gracious,  and  good,  she  was  a  worthy  helpmate  of 
such  a  man.  Domestic  life  is  sacred,  but  it  is  no  dese 
cration  to  say  of  Judge  Campbell  that  he  was  never 
too  busy  in  his  important  duties  to  enjoy  to  the  ut 
most  the  delights  of  family  intercourse.  Absorbed 
in  important  and  laborious  occupations,  he  seemed 
to  the  world  cold  and  austere,  but  in  his  home  life 
he  made  use  of  his  wonderful  learning,  his  excellent 


PERSONAL  CHARACTERISTICS      277 

taste,  and  his  fine  humor  for  the  constant  delight  of 
his  family  and  familiar  friends.  He  was  a  most  affec 
tionate  and  loving  husband,  a  most  kind,  prudent, 
and  indulgent  father."  1 

1  Major  H.  C.  Semple,  in  the  Montgomery  (Ala.)  Dispatch. 


CHAPTER  XI 

CONCLUSION 

His  home  broken  by  the  death  of  his  wife,  Judge 
Campbell  in  1884  changed  his  residence,  moving  to 
Baltimore,  Maryland,  where  two  of  his  daughters 
resided,  and  where  he  spent  the  remaining  years  of 
his  life.  He  did  not  seek  or  desire  general  practice, 
but  realizing  his  ideal  of  a  completed  professional 
life,  accepted  retainers  and  argued  in  the  Supreme 
Court  of  the  United  States  such  important  causes 
as  came  to  him.  His  last  argument  was  made  in  the 
case  of  New  Hampshire  vs.  Louisiana,  into  which  he 
put  the  learning  and  reflection  of  a  lifetime,  winning 
not  only  added  reputation,  but  establishing,  as  the 
unanimous  opinion  of  the  Court,  a  construction  of 
the  Constitution  which  protected  the  States  from 
liability  to  suit  without  their  consent,  thus  placing 
their  credit  upon  the  basis  of  their  reserved  political 
sovereignty  and  good  faith.  No  man  believed  more 
strongly  that  it  was  the  duty  of  States  as  well  as 
citizens  to  discharge  their  obligations,  but  Judge 
Campbell  well  knew  that  the  good-will  between  the 
several  States  so  essential  to  their  harmony  and 
peace  would  have  been  endangered  if  the  Court  had 
sustained  a  State  in  becoming  the  collecting  agency 
of  the  debts  of  other  States.  The  prevention  of  this 
he  regarded  as  the  highest  service  which  he  had  ren 
dered  to  the  States  and  a  fitting  conclusion  of  more 
than  fifty  years  of  professional  life. 


CONCLUSION  279 

The  men  of  his  day  have  largely  passed  away; 
those  who,  either  in  association  or  in  opposition, 
were  his  comrades  at  the  Bar  have,  with  but  few 
exceptions,  been  gathered  to  their  fathers.  We  have 
from  one  who  occupied  the  relation  of  friend  and 
pastor,  a  description  of  him  during  those  years  when 
interest  in  things  pertaining  to  life  was  losing  its 
hold  and  interest  in  those  of  eternal  value  was  grow 
ing  stronger.  At  the  Memorial  Meeting  of  the  Bar 
of  the  Supreme  Court,  upon  the  suggestion  of  Sena 
tor  Edmunds,  Rev.  Arthur  Chilton  Powell,  the  Rec 
tor  of  Grace  Church,  of  which  Judge  Campbell  was 
a  communicant,  was  invited  to  speak.  He  said:  "It 
was  my  privilege  to  know  him  in  the  latter  days  of 
his  life,  to  enter  somewhat  into  the  fruition  of  his 
hopes  and  his  plans,  to  see  the  culmination  of  his 
character,  to  observe  the  richness  and  the  ripeness, 
the  beauty  and  dignity  of  his  sterling,  honorable  old 
age,  and,  I  must  say,  and  I  take  pleasure  in  saying 
it  here  to  those  of  you  who  knew  him,  perchance,  in 
his  public  career,  in  those  stormy  days  when  con 
flict  and  antagonisms  prevailed,  that  of  all  men 
whom  I  ever  saw,  it  seems  to  me  that  no  one  pos 
sessed  in  himself  so  much  purity,  so  much  conscien 
tiousness,  so  much  rectitude,  and,  at  the  same  time, 
so  much  Christian  simplicity,  as  did  the  honorable 
man  whose  memory  we  are  here  to  commemorate. 
...  In  the  province  of  his  own  home,  perhaps  no 
man  was  more  conspicuous  for  those  sterling  and 
those  common  graces  and  gifts  that  mark  our  high 
est  and  our  most  characteristic  National  manhood. 
He  was  a  man  of  strong  domestic  nature,  a  man  of 


280      JOHN  ARCHIBALD  CAMPBELL 

pure  and  holy  affection,  a  man  whose  life,  notwith 
standing  its  remarkable  activity,  seemed  to  find  its 
joy  and  inspiration  in  the  quietude  and  seclusion  of 
his  own  home.  It  was,  indeed,  not  only  a  pleasure, 
but  a  privilege,  to  enter  that  charmed  circle  where 
this  rare  old  man,  with  his  frosted  head,  with  his 
genial  manner,  and  with  his  mild  grace,  bade  you 
welcome  to  enjoy  that  which  he  most  loyally  dis 
pensed,  the  kindness  and  generosity  and,  at  the 
same  time,  the  tenderness  of  ripened  manhood.  .  .  . 
He  was  ashamed  of  nothing  save  perchance  of  wrong 
and  dishonor,  which  never,  even  in  his  most  public 
days,  ever  attached  themselves  to  him,  and  what 
ever  may  have  been  his  course  regarding  which 
there  may  have  been  diverse  opinions,  in  his  own 
conscience  and  before  the  bar  of  his  own  soul  he 
pursued  the  straight  and  narrow  path  of  high,  digni 
fied,  and  consecrated  manhood."  1 

In  1889  an  invitation  was  extended  by  the  Court 
to  Judge  Campbell  to  attend  the  centennial  celebra 
tion  of  the  inauguration  of  the  Federal  Judiciary. 
When  communicated  to  him  by  the  Marshal  during 
his  last  days,  and  while  in  his  last  illness,  he  re 
sponded:  "Tell  the  Court  that  I  join  daily  in  the 
prayer,  'God  save  the  United  States  and  [its]  hon 
orable  Court.' "  These  were  his  last  words,  addressed 
to  the  Supreme  Court  of  the  United  States. 

Judge  Campbell  died,  March  12,  1889,  at  his  resi 
dence  in  Baltimore,  at  the  age  of  seventy-eight.  The 
" Baltimore  Sun,"  announcing  his  death,  said:  "He 
was  a  devout  Christian,  a  diligent  student  of  the 

1  Memorial  Addresses  —  Justice  Campbell,  16. 


CONCLUSION  281 

Bible  and  of  theology,  in  which  he  had  collected  a 
large  library.  He  was  gentle  in  his  character  and 
domestic  in  his  taste  —  devoted  to  his  family.77 

Expressions  of  sympathy  for  his  family  and  ap 
preciation  of  the  character  and  services  of  Judge 
Campbell  came  from  Chief  Justice  Fuller  and  others 
in  public  and  private  station.  The  press  of  Balti 
more,  New  Orleans,  and  Mobile  contained  apprecia 
tive  tributes  to  his  memory.  At  his  funeral  from 
Grace  Church,  Baltimore,  Justice  Lamar  attended 
as  the  representative  of  the  Supreme  Court,  and 
among  the  pallbearers  were  Senator  James  L.  Pugh, 
of  Alabama,  Senator  Randall  L.  Gibson,  of  Louisi 
ana,  Colonel  Walter  L.  Bragg,  of  Alabama,  and 
Major  R.  M.  Venable,  of  Baltimore.  Hon.  William 
Pinkney  Whyte  and  other  members  of  the  Bar,  and 
representatives  of  all  walks  of  life  from  Baltimore 
and  other  cities,  did  honor  to  the  memory  of  the 
great  lawyer  and  judge.  The  remains  were  deposited 
in  the  family  lot  in  Greenmount  Cemetery. 

Judge  Campbell's  only  son,  Duncan  Green  Camp 
bell,  died  several  years  prior  to  the  death  of  his 
father.  He  left  surviving  four  daughters,  Mrs.  Hen 
rietta  Lay,  widow  of  Colonel  George  W.  Lay;  Mrs. 
Kate  Groner,  wife  of  Colonel  V.  D.  Groner,  of  Nor 
folk,  Virginia;  Mrs.  Clara  Colston,  wife  of  Captain 
Frederick  M.  Colston;  and  Miss  Anna  Campbell,  of 
Baltimore. 

At  a  meeting  of  the  Bar  of  the  Supreme  Court, 
held  on  April  6,  1889,  in  Washington,  Mr.  George 
Ticknor  Curtis  was,  upon  motion  of  Mr.  George  F. 
Edmunds,  called  to  the  chair.  Mr.  William  A. 


282      JOHN  ARCHIBALD  CAMPBELL 

Maury,  in  presenting  resolutions,  prepared  by  Mr. 
Augustus  H.  Garland,  former  Attorney-General, 
lamenting  the  passing  away,  within  "the  span  of 
the  same  twelvemonth/ '  of  Chief  Justice  Waite, 
Justice  Stanley  Matthews,  and  John  Archibald 
Campbell,  said:  "When  such  men  are  laid  in  the 
dust  there  comes  a  feeling  of  despair,  for  it  is  impos 
sible  that  they  should  have  left  behind  them  one 
tithe  of  what  their  capabilities  could  have  achieved. 
As  Lord  Coke  says  somewhere  in  his  lamentation 
over  the  death  of  Littleton,  a  great  and  learned  man 
is  a  long  time  in  the  making,  and  when  he  dies  much 
learning  dies  with  him." 

Referring  to  his  immense  labor  in  acquiring  the 
vast  store  of  knowledge,  in  the  civil  and  common 
law,  he  said:  "It  is  well  for  the  younger  members  of 
the  profession  to  remember  that  the  success  of 
Judge  Campbell  at  the  Bar  was  the  result  of  patient, 
laborious  industry.  He  went  to  the  bottom  of  every 
thing  that  required  his  attention  and  shrank  from 
no  drudgery  that  was  necessary  to  accomplish  his 
purposes." 

George  F.  Hoadly,  referring  to  Judge  Campbell's 
appointment  to  the  Bench  and  the  eventful  inci 
dents  in  his  career,  said:  "Appointed  to  the  Bench 
when  only  forty-one  years  of  age,  at  the  solicitation 
of  the  Judges  of  the  Court,  the  most  honorable 
method  in  which  such  an  appointment  could  come, 
Judge  Campbell  lived  twenty-eight  years  beyond 
the  date  of  his  resignation,  lived  to  see  his  country 
reunited  and  the  great  Nation  in  whose  jurispru 
dence  he  took  such  patriotic  pride,  rejuvenated  and 


CONCLUSION  283 

renewed.  Notwithstanding  the  years  passed  in  the 
uncongenial  service  of  Assistant  Secretary  of  War 
of  the  Confederate  States,  his  later  life  was  not  sor 
rowful  in  contemplation  of  the  fact  that  the  hopes 
of  his  warlike  career,  if  such  it  may  be  called,  had 
been  frustrated,  and  that  all  portions  of  the  country 
were  again  united  under  the  ancient  banner  which 
he  once  represented  as  a  member  of  the  Court." 

Judge  Hoadly's  estimate  of  Judge  Campbell's 
equipment  for  and  service  on  the  Bench  is  of  special 
value  because  of  his  professional  learning  and  ex 
perience.  He  said:  "He  combined,  in  an  unusual 
degree,  the  knowledge  of  the  Roman  law  and  the 
common  law.  Familiar  with  the  laws  of  Louisiana 
and  Texas  and  the  civil  law  system,  which  is  the 
foundation  of  their  jurisprudence,  he  knew,  as  well, 
the  common  law  which  prevails  in  the  other  States. 
How  well  he  performed  his  duties,  how  fully  he  ful 
filled  the  expectation  of  the  members  of  the  Court 
who  solicited  his  appointment,  I  need  not  say. 
Nearly  thirty  years  have  passed  since  he  wrote  his 
last  opinion  in  this  Court,  but  we  all  know  him,  as 
history  has  recorded  him,  as  a  grave,  serious,  care 
ful,  clear,  logical,  persuasive,  .expounder  of  the  law." 

William  H.  Evarts  bore  generous  testimony  to 
Judge  Campbell's  character  and  judicial  service, 
saying:  "His  repute  had  long  been  established  with 
the  Southern  Bar  very  clearly  as  that  of  an  eminent 
lawyer  in  the  sense  of  judicial  power  and  of  philo 
sophical  and  constitutional  accuracy  and  strength. 
After  taking  his  seat  here  he  commended  himself  to 
the  Northern  Bar  and  to  all  the  forensic  disputants 


284      JOHN  ARCHIBALD  CAMPBELL 

before  this  Court.  I  think  the  Bar,  therefore,  felt 
it  with  a  sensible  regret  and  as  a  withdrawal  of 
strength  from  this  Court,  when  he  was  no  longer 
counted  among  its  Judges.  If  that  opinion  was  en 
tertained  at  that  time,  I  am  quite  sure  I  am  right  in 
saying  that,  in  the  observation  by  the  profession 
and  by  the  public  of  Mr.  Campbell's  career,  as  a 
member  of  the  Bar,  on  his  return  to  practice  in  this 
Court,  they  felt  even  an  increased  regret  that  his 
great  powers  and  his  supreme  integrity  of  nature 
and  intellect  had  been  permanently  lost  to  the 
Bench." 

George  Ticknor  Curtis  knew  and  practiced  at  the 
Bar  of  the  Supreme  Court  while  Judge  Campbell 
was  one  of  its  members.  He  also  knew,  better  than 
any  other  living  man,  the  estimate  in  which  he  was 
held  by  his  brother  Judge  Benjamin  R.  Curtis.  His 
remarks  upon  specific  cases  and  other  phases  of  the 
work  of  the  Court,  and  Judge  Campbell's  relation 
to  them,  have  been  quoted.  Concluding  his  interest 
ing  address,  he  said:  "At  the  close  of  the  Civil  War, 
Judge  Campbell  resumed  the  practice  of  his  profes 
sion  and  he  has  been  a  very  conspicuous  figure  at 
this  Bar  for  many  years.  He  ranks  with  the  greatest 
advocates  of  our  time,  not  for  eloquence,  not  for 
brilliancy,  not  for  the  arts  of  the  rhetorician,  but 
for  those  solid  accomplishments,  for  that  lucid  and 
weighty  argumentation,  by  which  a  Court  is  in 
structed  and  aided  to  a  right  conclusion.  The  day  of 
mere  eloquence  has  passed  away  from  this  forum. 
What  is  effectual  here  now  is  clearness  of  statement, 
closeness  and  accuracy  of  reasoning,  and  the  power 


CONCLUSION  285 

to  make  learning  useful  in  the  attainment  of  judi 
cial  truth.  These  accomplishments  were  possessed 
by  Judge  Campbell  in  a  very  uncommon  degree.  He 
has  lived  to  a  great  age,  and  in  the  whole  of  his  long 
life  there  has  never  been  a  public  act  or  utterance 
that  is  to  be  regretted." 

These  tributes  were  from  the  most  eminent  states 
men  and  lawyers  of  their  generation,  none  of  whom, 
except  Mr.  Maury,  were  from  the  section  of  the 
country  in  which  Judge  Campbell  was  born  and 
spent  his  life;  nor  were  they  in  sympathy  with  his 
political  opinions;  they  had  lived  through  and  acted 
their  part  in  no  mean  places  in  the  stirring  events  in 
which  he  figured  in  opposition.  They  fix  the  place 
which  he  held  in  their  estimate  as  a  lawyer,  judge, 
and  citizen.  The  resolutions,  attesting  their  "  ad 
miration  and  appreciation"  of  his  " great  career  as  a 
leading  practicing  lawyer,  and  as  a  judge  of  the  first 
rank,"  and  "in  commemoration  of  his  many  public 
and  private  virtues  and  that  modesty  and  simplic 
ity  which  were  the  chaste  setting  of  his  great  intel 
lect  and  learning,"  were  unanimously  adopted  and 
presented  to  the  Court  by  the  Attorney-General, 
with  appropriate  remarks.  In  accepting  them  and 
directing  that  they  be  spread  upon  the  record,  Chief 
Justice  Fuller  said:  "The  Court  recognizes  in  the 
decease  of  Mr.  Justice  Campbell  the  departure  of  an 
eminent  citizen,  who  through  his  power  of  intellect, 
profound  learning,  and  unremitting  diligence,  cou 
pled  with  integrity  of  mind  and  sincere  love  of  jus 
tice,  deservedly  achieved  high  reputation  as  a  jurist 
and  reflected  corresponding  credit  upon  this  Bench 


286      JOHN  ARCHIBALD  CAMPBELL 

during  the  years  he  adorned  it.  His  accession  here 
had  been  preceded,  as  his  regretted  retirement  was 
followed,  by  distinguished  service  in  the  legal  pro 
fession." 

Thus  is  the  record  of  his  life  and  work  as  a  mem 
ber  of  the  Bar  and  of  the  Court,  in  this  tribunal  of 
National  jurisprudence,  made  and  perpetuated  for 
all  time. 

In  the  State  and  Federal  Courts  of  New  Orleans 
no  less  generous  tributes  were  paid  to  Judge  Camp 
bell.  Resolutions  were  drawn  and  presented  by 
E.  T.  Merrick,  Thomas  L.  Bayne,  Carleton  Hunt, 
Edgar  H.  Farrah,  and  other  eminent  members  of  the 
Bar,  expressive  of  their  appreciation  of  his  charac 
ter,  learning,  and  services.  Hon.  Thomas  J.  Semmes, 
in  presenting  them  to  the  Circuit  Court  of  the 
United  States,  delivered  an  address  justly  described 
as  "of  classic  precision  and  eloquent  diction/'  re 
viewing  the  history  of  Judge  Campbell  from  his 
birth  to  the  end  of  his  career. 

Mr.  Charles  Parlange,  District  Attorney,  in  mov 
ing  acceptance  of  the  resolutions  by  the  Court,  thus 
concluded  his  eloquent  tribute:  "As  long  as  the 
judicial  records  of  this  country  shall  be  preserved, 
as  long  as  the  tradition  of  eminent  deeds  by  eminent 
Americans  shall  be  handed  down,  as  long  as  the  an 
nals  of  the  greatness  of  America  shall  be  perpetu 
ated,  so  long  shall  the  name  and  fame  of  John  Archi 
bald  Campbell  endure." 

Mr.  Thomas  L.  Bayne  in  a  singularly  happy  de 
scription  of  Judge  Campbell,  referring  to  his  social 
and  domestic  relations,  said:  "Here  he  was  as  ten- 


CONCLUSION  287 

der  and  gentle  and  affectionate  as  a  woman.  He 
neither  knew  nor  saw  any  wrong  in  those  whom  he 
loved,  and  in  return  those  who  were  nearest  to  him 
loved  him  past  all  understanding.  In  early  life  he 
had  promised  his  mother  that  he  would,  each  day  of 
his  life,  read  a  chapter  in  the  Bible;  this  he  fulfilled. 
I  remember  to  have  seen  on  his  table  the  Bible  used 
by  him,  with  a  regular  memorandum  made  therein 
of  the  number  of  times  he  had  read  it.  He  was  as 
familiar  with  the  Old  and  New  Testament  as  he  was 
with  the  alphabet.  Commenting  upon  one  of  the 
new  books  upon  what  is  denominated  '  modern 
Christianity/  he  pointed  to  his  large  library  of 
books  on  religious  subjects  and  said:  'I  have  read 
all  of  these,  but  after  all,  I  return  to  the  teachings  of 
Jesus  Christ  as  given  in  the  New  Testament  and  as 
practiced  by  the  plain  and  honest  people,  with 
whom  I  passed  the  earlier  years  of  my  life.M: 

Mr.  Bayne  closed  his  remarks,  as  follows:  " Great 
lawyer,  wise  judge,  earnest  patriot,  able  statesman, 
affectionate  friend,  devoted  father,  Christian  gen 
tleman.  We  shall  not  soon  look  upon  his  like  again." 

Speaking  for  the  Court,  Judge  Billings,  following 
a  tribute  to  his  learning,  industry,  and  service  on  the 
Bench,  said:  "At  better  advantage,  perhaps,  than 
at  any  other  period  of  his  life  did  he  show  his  in 
domitable  character  and  the  splendor  of  his  talents 
when,  at  the  close  of  the  war,  at  the  age  of  fifty-five 
years,  houseless  and  penniless,  without  occupation 

—  all  aids  to  and  even  connection  with  it  destroyed 

—  he  addressed  himself  to  building  up  anew  a  pro 
fessional  business.  Like  the  fabled  phoenix,  he  rose 


288      JOHN  ARCHIBALD  CAMPBELL 

from  his  ashes,  and  on  such  pinions  that  the  flight 
of  his  declining  years  was  higher  than  that  of  h'is 
early  manhood.  By  his  natural  gifts  and  his  toil,  as 
if  he  had  been  two  distinct  beings,  he  twice  achieved 
fame  and  success  at  the  Bar,  which  would  have  satis 
fied  the  most  ambitious  man  on  either  continent: 
the  last  time  when  he  was  no  longer  sustained  and 
borne  on  by  the  tireless,  adventurous  spirit  of  a  boy, 
but  was  compelled  to  rely  upon  the  heroic  purposes 
within  him,  so  strong  that  they  could  not  be  chilled 
by  disappointment  nor  chilled  by  age.  ...  He  was 
as  tender  as  he  was  true,  and  no  one  whom  he  loved 
ever  approached  him  in  anxiety  or  sorrow  without 
losing  something  of  his  personal  suffering  in  being 
made  to  feel  how  consistent  with  gentlest  kindness 
was  true  greatness  and  how  little  foundation  there 
was  for  the  creed  of  small  men  that  to  be  gifted  in 
intellect  one  must  be  hard  in  feeling." 

These  tributes  by  men  with  whom  for  the  last 
twenty-five  years  of  his  life  he  was  in  close  associa 
tion  justify  the  words  in  which  they  describe  his 
career:  "His  record  is  clear,  his  success  is  a  triumph. 
His  ambition  in  life  was  not  in  the  line  of  political 
preferment,  but  rather  to  be  known  as  a  great  and 
successful  lawyer  —  to  do  good  things  and  to 
achieve  great  things.  He  loved  the  profession  of  the 
law.  He  pursued  his  plan  with  constancy  and  with 
concentration  of  purpose  rarely  exhibited.  His  in 
tellect  was  massive,  his  learning  profound,  his  in 
stinct  judicial,  his  judgment  sound.  With  his  mas 
sive  and  solid  intellect  he  combined  the  weight  and 
force  of  an  irreproachable  character.  With  a  femi- 


CONCLUSION  289 

nine  sense  of  propriety  he  was  tender  to  the  unfortu 
nate,  charitable  to  the  afflicted,  gentle  to  the  weak. 
In  the  courts  and  tribunals  his  influence  was  vast. 
Upon  the  Bench  his  administration  of  justice  was 
prompt,  pure,  and  luminous." 

It  is  a  source  of  regret  that,  like  so  many  South 
ern  men  during  the  last  century,  Judge  Campbell 
did  not  preserve  his  correspondence.  He  left  no  let 
ters  received,  nor  copies  of  those  written  by  him, 
other  than  those  referred  to  in  the  foregoing  pages, 
nor  did  he  keep  a  diary  or  journal.  Except  for  his 
service  during  two  sessions  in  the  Legislature  of 
Alabama,  during  the  early  years  of  his  life,  he  nei 
ther  sought  nor  accepted  political  office.  As  said  by 
him  in  his  letter  to  the  Committee  of  the  State  Bar 
Association,  prior  to  his  appointment  to  the  Bench, 
he  practiced  his  profession  without  "  relaxation  or 
diversion."  In  the  same  letter  he  wrote:  "I  have 
paused  to  recollect  the  names  which  were  once  so 
familiar  and  so  endeared  by  familiar  and  friendly 
connection.  I  find  that  the  Judges  of  the  Supreme 
and  Circuit  Courts,  the  Chancellor,  the  members  of 
the  Bar  at  Montgomery  and  the  Supreme  Court, 
during  my  attendance  upon  the  Courts,  no  longer 
remain.  The  one  event  that  happeneth  to  all  hath 
happened  to  them  alike,  but  I  should  regret  to  think 
the  memory  of  them  is  forgotten."  He  pays  generous 
tribute  to  those  with  whom  he  was  associated,  and 
"informs"  those  who  have  come  after  them  of  the 
debt  "owed  to  those  who  established  the  dominion  of 
law  and  the  course  of  legal  procedure  in  Alabama ." 

His  duties  on  the  Bench  removed  him  from  social 


290      JOHN  ARCHIBALD  CAMPBELL 

and  professional  association  with  those  among 
whom  he  had  spent  the  first  twenty  years  of  his  pro 
fessional  life.  As  we  have  seen,  he  was  not  in  sympa 
thy  with  the  political  leaders  of  the  State  during  the 
years  immediately  preceding  the  Civil  War,  and  at 
its  close  found  his  field  for  labor  in  another  State. 
His  professional  labors  during  his  residence  in  New 
Orleans  gave  him  but  little  time  for  recreation  or 
for  reestablishing  the  relations  severed  by  the  war 
and  its  results.  That  he  retained  the  esteem  and 
friendship  of  the  descendants  of  the  friends  of  his 
young  manhood  is  seen  in  the  assurance  by  the  Com 
mittee  representing  the  State  Bar  Association,  when 
he  had  reached  the  age  of  seventy-three  years,  that 
he  was  "one  on  whom  the  esteem  and  affection  of 
the  people  of  Alabama  have  so  long  rested,  that 
they  have  not  ceased  to  claim  him  as  their  own/' 
After  his  death  a  life-size  oil  portrait  of  Judge 
Campbell  was  presented  to  the  Circuit  Court  at 
Montgomery  with  a  generous  tribute,  by  Major  H. 
C.  Semple,  who  "had  known  him  for  forty  years 
and  ever  esteemed  it  an  honor  that  he  had  enjoyed 
his  intimate  friendship." 

An  estimate  of  Judge  Campbell's  judicial  labors 
must  be  based  upon  a  study  of  his  opinions  and  the 
judgment  of  his  associates,  and  of  the  Bar  practic 
ing  before  the  Court.  An  effort  has  been  made,  by 
liberal  quotations  from  his  opinions,  to  afford  an 
opportunity  to  those  interested  in  his  career  to  form 
such  an  estimate.  That  Judge  Campbell  was,  "as 
history  has  recorded  him,  a  grave,  serious,  careful, 
clear,  logical,  persuasive  expounder  of  the  law,  and 


CONCLUSION  291 

as  such  his  fame  will  go  down  to  generations  in  the 
judgment  of  the  great  lawyers  with  whom  he  was 
associated/7  and  that,  "  coupled  with  integrity  of 
mind  and  sincere  love  of  justice,  he  deservedly 
achieved  high  reputation  as  a  jurist  and  reflected 
corresponding  credit  upon  the  Bench  during  the 
years  he  adorned  it,"  was  declared  by  Chief  Justice 
Fuller,  who  presided  at  the  meeting  of  the  Bar  of  the 
Supreme  Court  of  the  United  States  April  6,  1889, 
on  the  occasion  of  the  death  of  Judge  Campbell. 

While  many,  probably  a  majority,  of  the  opin 
ions  in  which  Judge  Campbell  dissented  from  the 
majority  of  the  Court,  extending  and  enlarging  the 
jurisdiction  of  the  Federal  Courts,  have  not  pre 
vailed,  he  was  in  agreement  with  a  school  of  states 
men  and  jurists,  eminent  for  learning  and  wisdom, 
who  believed  that  it  was  by  a  strict  construction  of 
the  grants  of  power  in  the  Federal  Government  that 
not  only  the  reserved  rights  of  the  States,  but  the 
civil  and  political  liberty  of  the  citizen  were  best 
protected.  The  opposite  view  prevailed,  for  reasons 
which  enter  into  the  history  of  the  Republic  during 
the  latter  years  of  the  nineteenth  century,  and  is 
now  held  not  only  by  Northern,  but  as  strongly  by 
many  Southern  statesmen  and  jurists.  If  there  be 
any  counter-current  of  thought  at  this  day,  it  is  to 
be  found  in  New  England  rather  than  in  the  South. 
Some  years  since  one  of  the  most  scholarly  and  ac 
complished  citizens  of  Massachusetts,  a  descendant 
of  the  second  and  sixth  Presidents,  referring  to  an 
expression  used  by  a  Southern  man  in  a  public  ad 
dress,  said:  "I  see  that  you  term  State  sovereignty 


292       JOHN  ARCHIBALD  CAMPBELL 

an  ' overly  debated  question/  In  this  I  cannot  quite 
concur.  On  the  contrary,  I  think  it  is  somewhat  in 
cumbent  now  upon  all  persons  who  have  occasion  to 
refer  to  that  subject  to  throw  great  emphasis  on  the 
original  organization  of  the  United  States,  including 
State  sovereignty.  The  tendency  now  is  to  the  other 
extreme.  The  centrifugal  action  has  worn  itself  out, 
and  the  centripetal  action  is  now  making  itself  felt, 
and  that  to  an  inordinate  degree."  Referring  to  a 
then  recent  decision  of  the  Supreme  Court  he  wrote : 
"It  goes  a  long  way  in  the  direction  of  conceding  to 
the  National  Government  all  powers  not  expressly 
inhibited,  thus  exactly  reversing  the  original  rule." 

Judge  Campbell  contended  for  the  preservation 
of  the  ancient  landmark,  and  who  may  say  that  in 
the  future  those  who  seek  to  restrain  the'  exercise  of 
centralized  power  will  not  find  support  in  the  vigor 
ous  thought  and  language  of  his  dissenting  opinions? 

His  efforts  on  the  three  occasions  referred  to,  to 
stay  the  current  of  political  and  sectional  passions, 
and  either  prevent  civil  war  or  to  bring  it  to  an  end, 
are,  for  the  first  time,  told  in  the  "record"  made  by 
himself  at  the  time.  On  each  occasion,  either  from 
ignorance  of  the  facts  or  for  political  reasons,  both 
have  been  misrepresented  and  misconstrued.  It  is 
not  the  purpose  of  this  work  to  invite  controversy 
regarding  the  motives  of  those  with  whom  he  was 
associated,  but  to  permit  Judge  Campbell  to  tell  the 
story  in  his  own  way.  Whether  Judge  Nelson,  Judge 
Campbell,  and  Mr.  Seward  were  correct  in  thinking 
that,  by  surrendering  Fort  Sumter  in  April,  1861, 
the  secession  of  the  border  States  would  be  pre~ 


CONCLUSION  293 

vented  and  the  return  of  the  seceding  States  to  the 
Union  secured,  is  of  necessity  conjectural.  It  is 
probable  that  the  conflict  was  irrepressible  and  that 
only  by  civil  war  could  slavery,  the  cause  and  oc 
casion  of  the  controversy,  be  destroyed. 

Judge  Campbell's  connection  with  the  Hampton 
Roads  Conference  has  been  told  by  himself  and  calls 
for  no  further  discussion.  It  is  manifest  that  he  did 
not  anticipate  any  practical  result  from  it,  unless 
Mr.  Davis  was  willing  to  enter  upon  negotiations 
resulting  in  a  return,  by  the  seceding  States,  to  the 
Union,  and  this  was,  from  his  point  of  view,  im 
possible.  As  said  by  Mr.  Hunter,  there  was  much 
to  be  said  on  both  sides  of  the  question.  Wars  are 
seldom  brought  to  an  end  until  the  weaker  belli 
gerent  acknowledges  defeat.  It  is  probably  true 
that  inconclusive  war  seldom  brings  permanent 
peace.  It  was  difficult  for  a  man  of  Judge  Camp 
bell  's  judicial  temperament  to  recognize  the  ne 
cessity  for  the  Southern  people  to  be  subjected 
to  the  fate  which  he  saw  awaited  them.  Whether 
Mr.  Davis  or  Judge  Campbell  saw  more  clearly 
what  was  the  better  course  to  pursue  on  Febru 
ary  5,  1865,  admits  of  much  debate.  Mr.  Davis 
regarded  Mr.  Lincoln's  terms  as  a  demand  for  an 
"  unconditional  surrender,"  and  this  he  could  not 
consider.  Judge  Campbell  regarded  them  as  a  basis 
for  further  negotiation,  resulting  in  restoration  of 
the  Southern  States  to  the  Union.  The  difference 
was  irreconcilable,  and  nothing  remained  to  be  done 
but  await  the  result,  which  both  did,  and  pursued 
with  constancy  and  courage  the  course  which  their 


294      JOHN  ARCHIBALD  CAMPBELL 

sense  of  duty  dictated.  The  two  men  were  tempera 
mentally  different,  and  while  they  were  not  in  agree 
ment  in  regard  to  the  course  which  should  be 
adopted  at  the  beginning  or  as  the  end  of  the 
struggle  approached,  there  is  no  evidence  that  either 
questioned  the  patriotism  of  the  other. 

After  the  fall  of  Richmond  and  the  surrender  of 
General  Lee,  both  Mr.  Lincoln  and  Judge  Campbell 
sincerely  desired  to  save  the  people  of  the  South 
from  the  fate  which  threatened  them.  That  the  plan 
proposed  by  Mr.  Lincoln  and  concurred  in  by  Judge 
Campbell,  if  successful,  would  have  brought  earlier 
restoration  of  the  seceding  States,  and  would  have 
saved  the  country  from  the  dark  days  of  Con 
gressional  reconstruction,  is  now  conceded  by  all 
thoughtful  men.  The  record  made  by  Judge  Camp 
bell  of  the  conversations  with  Mr.  Lincoln  and  the 
course  pursued  by  himself  vindicates,  not  only  the 
purity  of  his  motive,  but  the  wisdom  of  the  counsel 
which  he  gave  and  the  action  which  he  took.  But 
for  the  interference  of  the  radical  members  of  the 
Cabinet  and  the  Senate,  rendered  successful  by  the 
assassination  of  the  President,  a  different  and 
brighter  chapter  in  our  history  of  those  years  would 
have  been  written;  but,  as  said  by  Mr.  Curtis:  "  We 
can  rejoice  that  from  the  turmoil  and  hazards  of 
that  trying  period,  thanks  be  to  God,  the  Constitu 
tion  of  the  United  States  has  come  out  of  all  its  perils 
in  a  far  better  condition  than  could  have  been  an 
ticipated  for  it.  It  is  no  longer  a  subject  of  sectional 
controversy."  Of  Judge  Campbell  he  said:  "He  has 
lived  to  a  great  age,  and  in  the  whole  of  his  long  life 


CONCLUSION  295 

there  has  never  been  a  public  act  or  utterance  that 
is  to  be  regretted." 

Whatever  men  of  opposing  opinions  in  respect  to 
the  wisdom  of  Judge  Campbell's  course  on  these 
three  occasions  may  think,  none  will  doubt  the  truth 
of  the  record  made  by  him  and  set  out  in  the  fore 
going  pages,  nor  deny  that  he  was  prompted  by  pa 
triotic  motives  and  a  desire  to  serve  not  only  the 
Southern  people,  but  to  promote  the  welfare  of  the 
entire  country.  As  he  wrote  at  the  time  of  making 
the  record:  "It  contains  the  ' Facts  of  History/"  In 
regard  to  his  motive  repelling  the  charge  made  by 
Speed  and  other  enemies,  he  wrote:  "It  was  for  the 
people  I  made  intercession.  I  counseled  the  con 
querors  to  use  magnanimity,  forbearance,  kindness 
for  his  own  honor  and  advantage,  not  especially  for 
mine.  I  asked  no  boon  for  myself.  ...  I  have  a  right 
to  be  exempt  from  all  unjust  censure  and  from  all 
misrepresentation  of  my  connection  with  these 
events  and  from  all  unjust  accusation." 

The  truth  of  these  words  and  the  justice  of  this 
demand  are  manifest.  That  both  would  have  been 
admitted  and  secured  by  Mr.  Lincoln  if  he  had 
lived,  none  can  doubt.  Mr.  Evarts  truly  said,  when 
Judge  Campbell  had  passed  away:  "There  is  no 
danger  that  Mr.  Campbell's  public  relations  to  the 
country  at  large,  which  the  Civil  War  produced,  will 
affect  the  judgment  of  our  profession,  and  through 
them  the  people  of  the  whole  country,  in  their  es 
teem  of  the  value  of  his  great  services  and  of  those 
traits  of  character  and  lines  of  conduct  that  entitle 
him  to  be  permanently  remembered." 


TABLE  OF  CASES 

Ableman  vs.  Booth,  2  Howard,  506 75 

Allen  vs.  Newberry,  21  Howard,  244 50 

Attorney-General  vs.  Louisiana,  27  La.  Ann.  138 254 

Bailey  vs.  Alabama,  219  U.S.  219 233 

Bailey  vs.  Pollard,  20  Wall.  520 274 

Bank  vs.  Devaux,  5  Cranch,  61 27 

Butchers'  Union  vs.  Crescent  Co.,  Ill  U.S.  746 229 

Burr  vs.  Duryee,  1  Wall.  531 25 

Chisholm  vs.  Georgia,  2  Dallas,  419 244 

Christ  Church  vs.  Philadelphia,  24  Howard,  300 35 

Collins  vs.  Hallert,  10  Howard,  174 11 

Corfield  vs.  Coryell,  4  Wash.  (C.C.)  371 224 

Corning  vs.  Iron  Factory,  15  Howard,  451 83 

Dartmouth  College  Case,  4  Wheat.  518 228 

De  Lovio  vs.  Boit,  2  Gall.  (C.C.)  398 38 

Dodge  vs.  Woolsey,  18  Howard,  331 31 

Florida  vs.  Georgia,  17  Howard,  478 51 

Forsyth  vs.  Reynolds,  15  Howard,  561 83 

Fretz  vs.  Bull,  12  Howard,  466 41 

Gaines  vs.  Relf,  12  Howard,  474 11 

Gaines  vs.  Hennin,  24  Howard,  615 14 

Gaines  vs.  New  Orleans,  6  Wall.  642 14 

Garland,  Ex  Parte,  4  Wall.  333 208 

Jackson  vs.  Ludeling,  21  Wall.  616 236 

Jackson  vs.  Magnolia,  20  Howard,  296 41 

Kennett  vs.  Chambers,  14  Howard,  24 92 

Kentucky  vs.  Denison,  24  Howard,  66 77 


298  TABLE  OF  CASES 

Lafayette  vs.  Kenton,  18  Howard,  197 90 

Lehigh  Mining  &  Manufacturing  Co.  vs.  Kelly,  160  U.S. 
330 31 

Louisiana  vs.  Pillsbury,  105  U.S.  278 269 

Louisville,  C.  &  C.  R.R  Co.  vs.  Letson,  2  Howard,  497  ...     28 

McDonogh  vs.  Murdock,  15  Howard,  564 21-24 

Marshall  vs.  Baltimore  &  Ohio  R.R.,  16  Howard,  314 27 

Memphis  &  L.  R.  R.R.  Co.  vs.  Southern  Express  Co.,  117 

U.S.  1 252 

Munn  vs.  Illinois,  94  U.S.  113 251 

New  Orleans  vs.  Gaines,  131  U.S.  191 15 

New  York  vs.  Louisiana,  108  U.S.  76 242-49 

New  Orleans  Gas  Light  Co.  vs.  Louisiana  Light  Co.,  115 
U.S.  650 254 

O'Reilley  vs.  Morse,  15  Howard,  62 24 

Parsons  vs.  Jackson,  99  U.S.  434 238 

Piqua  Bank  vs.  Knoop,  16  Howard,  376 34 

Scott  vs.  Sanford,  19  Howard,  393 54 

Slaughter-House  Cases,  16  Wall.  36 211 

Smith  vs.  Swormstedt,  15  Howard,  288 24 

Spies  vs.  Illinois,  124  U.S.  131 230 

State  vs.  Manuel,  20  N.C.  601 60 

Stone  vs.  Farmers  Loan  &  Trust  Co.,  116  U.S.  307 250-51 

Strader  vs.  Graham,  10  Howard,  82 61 

Taylor  vs.  Caryll,  20  Howard,  583 47 

Tennessee  Bond  Cases,  114  U.S.  663 250 

The  Commerce,  1  Black,  578 50 

The  Genesee  Chief,  12  Howard,  443 40 

The  Lottawanna,  21  Wall.  558 50 

The  Thomas  Jefferson,  10  Wheat.  429 37 

Tonnage  cases,  12  Wall.  204 208 

Twining  vs.  New  Jersey,  211  U.S.  78 230 

United  States  vs.  Cruikshank,  92  U.S.  542 230 


TABLE  OF  CASES  299 

Waring  vs.  Clarke,  5  Howard,  451 37,  38 

Waring  vs.  Mayor,  8  Wall.  110 208 

Winans  vs.  Denmead,  15  Howard,  330 25 

Wright  vs.  Kentucky  R.R.,  117  U.S.  1 254 

York  &  M.  Line  R.  Co.  vs.  Winans,  17  Howard,  30 36 


INDEX 


Adams,  Charles  Francis,  156. 

Admiralty  jurisdiction  of  the  Fed 
eral  Courts,  37-51. 

Alabama,  ordinance  of  secession 
adopted  by,  119;  Judge  Camp 
bell's  statement  of  his  efforts  to 
avoid  secession  of,  138—40;  ad 
dress  of  Judge  Campbell  pre 
pared  for  the  State  Bar  Associa 
tion,  274-76. 

Anderson,  Frank,  case  against, 
100. 

Anderson,  General  Joseph  R.,  178, 
180,  184. 

Andrews,  Charles,  82. 

Badger,  George  E.,  24,  83;  nomi 
nation  to  Supreme  Court  of 
United  States  not  confirmed,  16; 
on  Judge  Curtis  and  Judge 
Campbell,  advocating  increase 
of  compensation  of  Justices,  18; 
on  the  judicial  courage  of  Judge 
Curtis  and  Judge  Campbell,  100. 

Baldwin,  John  B.,  on  his  interview 
with  President  Lincoln,  146. 

Baldwin,  Governor  Simeon,  on 
legal  fictions,  31. 

Ballentine,  H.,  149. 

"Baltimore  Sun,"  the,  tribute  of, 
to  Judge  Campbell,  280. 

Bancroft,  George,  his  attitude 
toward  Confederates,  157. 

Bartlet,  Sidney,  253. 

Bayard,  Senator,  157. 

Bayne,  Thomas  L.,  286;  tribute  of, 
to  Judge  Campbell,  286,  287. 

Beard,  Professor  Charles  A.,  on 
the  Fourteenth  Amendment, 
230. 

Bench,  the,  and  the  Bar,  204,  205. 

Benjamin,  Judah  P.,  21,  83,  89. 

Bentham,  on  legal  fictions,  30. 

Berrnudez,  Edward,  210. 


Biddle,  George  W.,  quoted,  76,  80. 

Billings,  Judge,  tribute  of,  to 
Judge  Campbell,  287,  288. 

Black,  Jeremiah  S.,  74,  210,  241; 
Attorney-General,  82;  sustains 
Judge  Campbell's  statement  rel 
ative  to  his  efforts  to  prevent 
secession,  140. 

Elaine,  James  G.,  on  the  Slaugh- 
ter-House  decision,  229. 

Blair,  Frank,  164. 

Blair,  Montgomery,  58. 

Blatchford,  Judge,  249. 

Booth,  Sherman,  the  case  of,  73- 
75. 

Boston  and  the  Fugitive  Slave 
Law,  92,  93. 

Botts,  John  Minor,  statement  of, 
relative  to  the  evacuation  of 
Fort  Sumter,  146. 

Boutwell,  Senator,  on  the  Slaugh- 
ter-House  decision,  229. 

Bradley,  Judge,  and  the  Slaughter- 
House  cases,  210,  224,  226-28, 
233;  in  Jackson  vs.  Ludeling, 
239. 

Bragg,  Colonel  Walter  L.,  281. 

Brent,  Robert  J.,  21,  83. 

Buchanan,  James,  letters  of  Stan- 
ton  to,  concerning  the  Seward- 
Campbell  negotiation,  140-42. 

Burgess,  Professor  John  W.,  on 
the  Slaughter-House  decision, 
230. 

Burr  vs.  Duryee,  25,  26. 

Calhoun,  John  C.,  Judge  Camp 
bell's  estimate  of,  263. 

Campbell,  Miss  Anna,  daughter  of 
Judge  Campbell,  281. 

Campbell,  Duncan  Green,  son  of 
John  Archibald  (1),  3-6. 

Campbell,  Duncan  Green,  son  of 
John  Archibald  (2),  207,  281. 


302 


INDEX 


Campbell,  J.  Mason,  83. 

Campbell,  John,  3. 

Campbell,  John  Archibald  (1),  son 
of  John,  3. 

Campbell,  John  Archibald  (2),  an 
cestry,  1-6;  birth  and  education, 
6,  7;  early  career  and  admission 
to  the  bar,  7;  marriage,  8;  early 
career  in  Alabama,  8,  9;  in  the 
Legislature  of  Alabama,  9;  his 
personal  appearance  and  man 
ner,  9,  10;  his  title  to  fame,  10; 
his  studies,  10,  11;  in  the  Su 
preme  Court  of  Alabama  and 
the  Circuit  Courts,  11;  cases  ar 
gued  before  the  Supreme  Court 
of  the  United  States,  11;  his  ar 
guments  in  the  Myra  Clark 
Gaines  case,  11-15;  refuses  ap 
pointment  to  Supreme  Court  of 
Alabama,  16;  appointed  to  Su 
preme  Court  of  the  United 
States,  17;  appointment  of,  gen 
erally  approved,  17,  18;  his  esti 
mate  of  the  personnel  of  the 
Court,  18,  19;  his  arguments  in 
the  case  of  The  Executors  of 
John  McDonogh  vs.  Mary  Mur- 
dock  and  others,  21-24;  in  the 
case  of  the  Methodist  Episcopal 
Church,  24;  in  the  case  of  the 
Morse  telegraph,  24;  his  opinion 
in  Winans  vs.  Denmead,  25-27; 
his  hostility  to  monopolies,  25; 
his  attitude  toward  the  enlarge 
ment  of  the  jurisdiction  of  the 
Federal  Courts  in  cases  involv 
ing  corporations,  27—34;  on  the 
sovereignty  of  the  people,  33, 
34;  on  public  grants,  34,  35;  on 
grants  of  immunity  from  taxa 
tion,  35,  36;  on  attempts  at  mo 
nopolies  and  immunities,  35;  on 
liability  of  railroad  for  acts  of 
its  lessee,  36;  his  position  on 
admiralty  causes,  37,  42-47,  49, 
50;  opposes  intervention  of  At 
torney-General  in  case  between 
States,  51,  52;  his  assertion  of 
judicial  independence  of  execu 


tive  interference,  52,  53;  his  atti 
tude  in  the  Dred  Scott  case,  61- 
63 ;  his  opinion  in  the  Dred  Scott 
case,  61-63;  his  understanding 
of  the  course  pursued  by  the 
Court  in  the  Dred  Scott  case, 
66—68;  on  relations  of  opposing 
judges  in  the  Dred  Scott  case, 
69;  emancipated  his  household 
slaves,  71;  letter  on  resignation 
of  Judge  Curtis,  81;  alive  to  the 
dangers  of  the  time,  85;  not  a 
dissenting  Judge,  85,  86 ;  a  strict 
constructionist,  86,  291,  292; 
character  and  style  of  his  opin 
ions,  87. 

On  the  Southern  Circuit,  89; 
his  promptitude  in  dispatching 
business,  90;  charges  of,  to  grand 
jury  regarding  the  neutrality 
laws,  91-93,  100,  101;  his  refer 
ence  to  events  in  Boston  in  con 
nection  with  the  enforcement  of 
the  Fugitive  Slave  Law,  93;  and 
the  Quitman  case,  95-99;  his 
courage  as  a  Judge,  100;  declines 
invitation  to  public  dinner  ten 
dered  him  in  Mobile,  101,  102; 
charge  of,  to  grand  jury  on  slave 
trade,  102,  103;  his  charge  ap 
proved  by  papers,  103,  104;  gave 
careful  study  to  the  slavery 
question,  104,  105;  words  of,  on 
the  duty  of  the  Southern  people, 
105—07;  member  of  Convention 
of  Southern  States  held  at  Nash 
ville,  June  6,  1850,  108;  avoided 
politics,  109;  his  views  on  the 
election  of  Lincoln,  109-12;  his 
views  in  respect  to  the  rights  of 
the  Southern  people,  112;  advo 
cates  constitutional  settlement 
of  the  slavery  question,  114; 
correspondence  with  Franklin 
Pierce  concerning  the  slavery 
question,  114—16;  his  memoran 
dum  of  conversation  on  the  slav 
ery  question,  116-18;  his  views 
on  secession,  118,  119;  his  part 
in  negotiations  relative  to  evacu- 


INDEX 


303 


ation  of  Fort  Sumter,  122-32; 
letters  of,  to  Seward  concerning 
Sumter,  133-38;  his  statement 
of  his  efforts  to  prevent  seces 
sion  and  avert  war,  138-40;  let 
ters  of  Stanton  to  Buchanan  on 
the  negotiations  of,  with  Seward, 
140-42;  the  sincerity  of  his  ef 
forts  to  preserve  peace,  142; 
varying  views  as  to  the  nego 
tiation  of  Seward  with,  142— 
48;  letter  wrongly  ascribed  to, 
145. 

Resignation  from  Supreme 
Court,  149;  regrets  at  his  resig 
nation,  150,  151;  his  resignation 
a  great  sacrifice,  152;  forms 
partnership  in  New  Orleans, 
152;  justification  of  his  action  in 
resigning,  152-56;  believed  in 
reserved,  inalienable  right  of 
secession,  154;  his  duties  as  As 
sistant  Secretary  of  War  under 
the  Confederacy,  158-61 ;  efforts 
to  secure  peace  by  negotia- 
tion,'161-63;  "Memorandum "of 
Hampton  Roads  Conference  pre 
pared  by,  164,  169;  his  recol 
lection  of  what  was  said  at  the 
Conference,  166;  urged  negotia 
tion  on  basis  of  Lincoln's  propo 
sitions,  171,  172;  recommenda 
tions  of,  as  to  action  by  the  Gov 
ernment,  172;  hands  resolution 
to  Graham,  173;  tribute  of  Gra 
ham  to,  173;  his  final  effort  as 
peacemaker,  174;  his  conversa 
tions  with  Lincoln,  175-77;  his 
letter  of  April  7,  1865,  178;  re 
view  of  his  conduct  in  connec 
tion  with  the  assembling  of  the 
Virginia  Legislature,  180-87; 
letter  addressed  to  Mr.  Greeley, 
188-92;  arrested,  192;  cause  of 
his  arrest,  192,  197;  letters  to 
Hunter  and  Speed,  192-96;  re 
leased  from  prison,  199;  his 
views  on  the  results  of  the  war, 
200. 

His  position  at  the  end  of  the 


war,  201,  204;  tributes  to,  as 
member  of  the  Bar,  205;  settles 
in  New  Orleans,  206;  in  partner 
ship  with  Spofford  and  Duncan 
G.  Campbell,  207;  appears  for 
first  time  in  Supreme  Court  of 
United  States,  208;  and  the 
Slaughter-House  cases,  208-35; 
and  the  Jackson  vs.  Ludeling 
case,  236-41 ;  and  the  State-bond 
coupon  case,  241-50;  and  the 
Tennessee  Bond  cases,  250,  254; 
and  the  Railroad  Commission 
cases,  250—52;  and  the  Express 
Company  cases,  252-54;  and 
the  Louisiana  Gas  Company 
case,  254-56. 

His  personal  appearance,  257, 
260;  his  passion  for  labor,  257, 
258;  anecdote  about  his  appear 
ance  and  manner,  258,  259;  de 
scription  of,  from  the  "Philadel 
phia  Record,"  260,  261;  charac 
teristics  of,  261,  262;  his  esti 
mate  of  Calhoun,  263;  his  es 
timate  of  Senator  Hunter, 
264 ;  incident  concerning  wife  of 
James  M.  Mason  told  by,  264, 
265;  his  estimate  of  William  A. 
Graham,  266;  his  estimate  of 
Chief  Justice  Eustis  of  Louisi 
ana,  266;  samples  of  his  oratory, 
266-72;  took  no  part  in  politics 
after  the  war,  272 ;  his  denuncia 
tion  of  the  Louisiana  State  Gov 
ernment,  273 ;  on  the  negro  ques 
tion,  274;  incident  of  his  refusing 
a  retainer,  274 ;  address  prepared 
by,  for  the  Alabama  State  Bar 
Association,  274-76;  his  devo 
tion  to  the  State,  276;  death  of 
his  wife,  276. 

Removal  to  Baltimore,  278; 
his  last  argument,  New  Hamp 
shire  vs.  Louisiana,  278;  tribute 
of  Rev.  Arthur  Chilton  Powell 
to,  279,  280;  his  last  words,  ad 
dressed  to  the  Supreme  Court, 
280;  death,  280;  funeral  of,  281; 
resolutions  on,  for  Supreme 


304 


INDEX 


Court,  282,  285;  his  surviving 
daughters,  281;  tribute  of  Wil 
liam  A.  Maury  to,  282;  tribute 
of  Judge  Hoadly  to,  282,  283; 
tribute  of  William  H.  Evarts  to, 
283,  295;  tribute  of  G.  T.  Curtis 
to,  284;  tribute  of  Chief  Justice 
Fuller  to,  285,  291;  resolutions 
on,  for  Courts  of  New  Orleans, 
286-89;  tribute  of  Charles  Par- 
lange  to,  286;  tribute  of  T.  L. 
Bayne  to,  286,  287;  tribute  of 
Judge  Billings  to,  287,  288;  left 
no  correspondence,  diary  or 
journal,  289;  tribute  of,  to  hia 
former  associates,  289;  his  time 
filled  by  professional  duties,  290; 
estimate  of  his  judicial  labors, 
290,  291;  theee  times  misrepre 
sented  and  misconstrued,  292; 
consideration  of  his  views  as  to 
terms  of  peace  with  the  North, 
293;  consideration  of  his  con 
versations  with  President  Lin 
coln,  294;  acted  from  patriotic 
motives,  295. 

Campbell,  Mrs.,  wife  of  John 
Archibald,  death,  276. 

Campbell,  John  W.,  7. 

Campbell,  Mary  Williamson,  6. 

Campbellton  (otherwise  Cross 
Creek,  Fayetteville) ,  North  Car 
olina,  2. 

Cape  Fear  River,  North  Caro 
lina,  1. 

Carlisle,  of  Washington,  83. 

Carpenter,  Matthew  H.,  210,  241. 

Carr,  General  Julian  S.,  his  study 
of  the  Hampton  Roads  Confer 
ence,  166. 

Carson,  H.  L.,  on  Campbell  as  a 
jurist,  17;  on  Campbell's  resig 
nation  from  the  Supreme  Court, 
151;  on  Judge  Curtis  and  Judge 
Campbell  upon  the  Bench  and 
at  the  Bar,  205. 

Catron,  Justice  James,  in  various 
cases,  in Gaines  vs.  Relf ,  Exr.,  13 ; 
in  Winans  vs.  Denmead,  25,  26; 
in  Dodge  vs.  Woolsey,  31;  in 


Piqua  Branch  of  the  State  Bank 
of  Ohio  vs.  Knoop,  34;  in  War 
ing  vs.  Clarke,  39;  in  Jackson  vs. 
Magnolia,  42. 

Chase,  Salmon  P.,  24,  83;  in  the 
Slaughter-House  cases,  224,  227, 
233. 

Christ  Church  vs.  Philadelphia, 
35,  36. 

Churches,  on  tax-exemption  of,  36. 

"  Citizen,"  meaning  of,  29;  as  ap 
plied  to  Dred  Scott,  58-60,  63, 
64;  as  applied  in  the  Slaughter- 
House  cases,  221-27. 

Citizens,  corporations  as  legal,  27- 
31. 

Citizenship,  dual,  223-27,  231. 

Clarke,  Colonel  Elijah,  5,  6. 

Clarke,  General  John,  4. 

Clarke,  John,  Governor  of  Geor 
gia,  6,  7. 

Clay,  Clement  C.,  Governor  of 
Alabama,  16,  82. 

Clifford,  Judge  Nathan,  48,  82, 
233. 

Clingman,  Thomas  L.,  on  Lin 
coln's  attitude  toward  the  evac 
uation  of  Fort  Sumter,  147. 

Collier,  Henry  W.,  Governor  of 
Alabama,  16. 

Collins,  Charles  W.,  on  the  Slaugh 
ter-House  decision,  230;  on 
cases  involving  the  construction 
of  the  Fourteenth  Amendment, 
233. 

Collins  vs.  Hallert,  11. 

Colston,  Mrs.  Clara,  wife  of  Cap 
tain  Frederick  M.  Colston, 
daughter  of  Judge  Campbell, 
281. 

Confederacy,  Southern,  formation 
of,  120;  Judge  Campbell's  serv 
ices  to,  149-92. 

Conkling,  Senator,  232. 

Conrad,  Charles  M.,  89. 

Constitution  of  the  United  States, 
divergent  canons  of  construc 
tion  of,  44-50 ;  uncertainty  in  re 
gard  to  the  construction  of,  il 
lustrated  in  Downes  vs.  Bidwell, 


INDEX 


305 


72;  argument  of  Judge  Camp 
bell  on  the  construction  of,  in 
the  State-bond  coupon  case, 
241-50. 

Convention  of  Southern  States 
held  at  Nashville,  June  6,  1850, 
108. 

Cooper,  in  Kentucky  vs.  Denison, 
78. 

Corning  vs.  Iron  and  Nail  Factory, 
83. 

Corporations,  the  question  of 
their  liability  as  citizens  and  the 
extension  of  the  jurisdiction  of 
the  Federal  Courts  over,  27-34; 
legislative  grants  to,  34,  35;  rail 
road,  liability  of,  for  acts  of  its 
lessee,  36.  See  Railroad  Com 
mission  Cases. 

Costa  Rica,  violation  of  neutrality 
laws  in  connection  with,  100. 

Cotton  &  Levy,  210. 

Crawford,  Martin  J.,  author  of  let 
ter  to  Robert  Toombs,  145. 

Crawford,  General  Samuel  W.,  on 
Judge  Campbell's  efforts  to 
avert  war,  142. 

"  Crime,"  construction  of,  in  the 
Constitution,  77,  78. 

Crittenden,  John  J.,  38,  83,  116. 

Cross  Creek  (otherwise  Campbell- 
ton,  Fayetteville) ,  2. 

Cuba,  filibustering  expeditions 
against,  90-100. 

Curtis,  Judge  Benjamin  R.,  24, 
83;  Mr.  Badger  on,  18;  from  eu 
logy  of  Judge  Campbell  on,  18; 
in  Winans  vs.  Denmead,  25-27; 
in  the  Dred  Scott  case,  59,  60, 
64,  66-68;  on  Chief  Justice  Ta- 
ney,  69;  resignation  from  Su 
preme  Court,  80,  81 ;  his  courage 
as  a  judge,  100;  intervenes  with 
President  Johnson  for  release  of 
Judge  Campbell,  198,  199;  upon 
the  Bench  and  at  the  Bar,  205. 

Curtis,  George  Ticknor,  55,  58,  83, 
281 ;  on  the  Dred  Scott  case  and 
the  slavery  question,  70,  71;  on 
the  resignation  of  Judge  Curtis, 


80;  on  Judge  Campbell's  patriot 
ism,  157;  his  "Memoir"  of  his 
brother,  206 ;  tribute  of,  to  Judge 
Campbell,  284,  294;  on  the  pres 
ervation  of  the  Constitution 
from  the  war,  294. 
Gushing,  Attorney-General  Caleb, 
82. 

Dana,  Charles  A.,  181,  184. 

Daniel,  Judge,  in  various  cases,  in 
Winans  vs.  Denmead,  26;  in 
Dodge  vs.  Woolsey,  32 ;  in  Piqua 
Branch  of  the  State  Bank  of 
Ohio  vs.  Knoop,  34;  in  Waring 
vs.  Clarke,  39;  in  The  Genesee 
Chief,  40;  in  Jackson  vs.  Mag 
nolia,  42;  in  Florida  vs.  Georgia, 
52;  in  the  Dred  Scott  case,  60; 
death,  82. 

Dart,  Henry  P.,  anecdote  concern 
ing  Judge  Campbell  told  by, 
258,  259. 

Davis,  Jefferson,  his  charge  that 
the  equivocating  conduct  of  the 
Administration  was  the  proxi 
mate  cause  of  the  war,  143;  and 
the  Hampton  Roads  Confer 
ence,  164,  169-71;  consideration 
of  his  views  as  to  terms  of  peace 
with  the  North,  293. 

Davis,  Justice,  14. 

Day,  Judge,  250. 

De  Lovio  vs.  Boit,  38,  45. 

Devaux  case,  27,  29. 

Dillon,  Judge  John  F.,  253. 

Dissenting  opinions,  valuable  serv 
ice  of,  86. 

Dix,  General,  144. 

Dodge  vs.  Woolsey,  31-34. 

Doolittle,  James  R.,  82. 

Douglas,  Stephen  A.,  116. 

Downes  vs.  Bidwell,  72. 

Dred  Scott  case,  controversy  con 
cerning,  54,  55;  history  of,  56- 
71. 

Duer,  William  A.,  242. 

Edmunds,   George   F.,   234,   252, 

281. 


306 


INDEX 


Egan,  J.  C.,  242. 

Electoral  Commission,  from  Judge 

Campbell's  speech  before,  272, 

273. 

Ellsworth,  Oliver,  243. 
Eustis,  Chief  Justice  of  Louisiana, 

Judge   Campbell's   estimate   of, 

266. 

Eustis,  George,  89. 
Evarts,  William  H.,  tribute  of,  to 

Judge  Campbell,  283,  295. 
Ewarts,  William  M.,  83. 
Ewing,  Thomas,  21,  83. 
Express  Company  cases,  the,  252- 

54. 

Farrah,  Edgar  H.,  286. 

Faulkner,  Charles,  82. 

Fayetteville  (otherwise  Campbell- 
ton,  Cross  Creek),  2. 

Federal  Courts,  enlargement  of 
jurisdiction  of,  cases  involving, 
27-51. 

Fellows,  J.  Q.  A.,  210. 

Fellows  &  Mills,  210. 

Fessenden,  William  Pitt,  168. 

Fictions,  legal,  30,  31,  245. 

Field,  David  Dudley,  242. 

Field,  Judge  Stephen  J.,  in  the 
Slaughter-House  cases,  224-26, 
228,  233;  in  Jackson  vs.  Lude- 
ling,  239,  240;  in  the  State-bond 
coupon  cases,  249;  in  the  Ex 
press  Company  Cases,  253. 

Florida  vs.  Georgia,  51. 

Forsyth  vs.  Reynolds,  83. 

Fort  Pulaski,  192. 

Fort  Sumter,  negotiations  relating 
to  evacuation  of,  120-48,  292. 

Fourteenth  Amendment,  interpre 
tation  of,  208-35. 

Fugitive  Slave  Law,  the,  opposi 
tion  to,  in  Wisconsin,  72-76 ;  op 
position  to,  on  part  of  Ohio,  77- 
80 ;  could  not  be  enforced  if  pub 
lic  opinion  was  opposed,  83-85; 
events  in  Boston  in  connection 
with  the  enforcement  of,  92,  93. 

Fuller,  Chief  Justice,  250,  281,  285, 
291. 


Gaines,  Myra  Clark,  the  case  of, 
11-15. 

Garland,  Augustus  H.,  Attorney- 
General,  82;  quoted  on  Judge 
Campbell,  87;  resolutions  on 
death  of  Judge  Campbell  pre 
pared  by,  282. 

Gaston,  Judge  William,  20. 

Genesee  Chief,  The,  40,  41. 

Georgia,  the  early  settlers  of,  6. 

Geyer,  Henry  S.,  58. 

Gibson,  Senator  Randall  L.,  248, 
281. 

Gilmer,  Governor,  anecdote 
quoted  from,  7. 

Goldthwaite,  Anna  Esther,  wife  of 
Judge  Campbell,  8.  See  Camp 
bell,  Mrs. 

Goldthwaite,  George,  8. 

Goldthwaite,  Henry,  8. 

Goldthwaite,  Colonel  Thomas,  8. 

Graham,  WTilliam  A.,  173;  Judge 
Campbell's  estimate  of,  266. 

Grant,  U.  S.,  on  interview  with 
President  Lincoln,  167. 

Gray,  Judge  Horace,  82,  248. 

Greeley,  Mr.,  letter  of  Judge 
Campbell  addressed  to,  188-92. 

Grier,  Judge  Robert  C.,  in  Winans 
vs.  Denmead,  26;  in  Marshall  vs. 
Baltimore  &  Ohio  Railroad 
Company,  28;  in  Waring  vs. 
Clarke,  39;  in  Jackson  vs.  Mag 
nolia,  41;  in  Taylor  vs.  Caryll, 
48. 

Groner,  Mrs.  Kate,  wife  of  Colonel 
V.  D.  Groner,  daughter  of  Judge 
Campbell.  281. 

Guthrie,  William  D.,  on  the 
Slaughter-House  decision,  229; 
on  Judge  Campbell's  passion  for 
labor,  258. 

Hampton  Roads  Conference,  the, 
164-72,  293. 

Harding,  George,  24-26. 

Harlan,  Judge,  228;  on  the  pre 
sumption  that  corporations  are 
fictions,  30. 

Hay,  John,  as  to  whether  Lincoln 


INDEX 


307 


promised  to  evacuate  Fort  Sum- 

ter,  144. 
Highlanders,  emigrants  to  North 

Carolina,  1,  2. 
Hoadly,      Governor,      on      Judge 

Campbell,  87. 
Hoadly,  Judge  George,  250,  262; 

tribute  of,  to  Judge  Campbell, 

282,  283. 

Holt,  Joseph,  144. 
Howe,  Daniel  Wait,  and  author 
ship  of  letter  to  Robert  Toombs, 

145. 

Howe,  Senator,  on  the  Slaughter- 
House  decision,  229. 
Hunt,    Carleton,    286;    on    Judge 

Campbell's  career  as  member  of 

the  Bar,  207. 
'Hunt,  Randell,  210. 
Hunt,  William  H.,  21,  89,  210. 
Hunter,   Senator  R.   M.   T.,   169, 

170,  192,  193;  Judge  Campbell's 

estimate  of,  264. 

Jackson  vs.  Ludeling,  236-41. 

Jackson  vs.  Magnolia,  41-47. 

Janin,  Louis,  83. 

Johnson,  John  G.,  230. 

Johnson,  Reverdy,  83;  in  Gaines 
vs.  Relf,  Exr.,  13;  in  The  Execu 
tors  of  John  McDonogh  vs.  Mary 
Murdock,  25;  in  Waring  vs. 
Clarke,  38;  in  Dred  Scott  case, 
58;  on  the  presentation  of  argu 
ments  by  Taney  and  Curtis  in 
the  Dred  Scott  case,  68,  69. 

Kellogg,  William  Pitt,  272. 
Kentucky  vs.  Denison,  77. 

Lafayette,  General,  claims  of  heirs 
of,  90. 

Lamar,  Justice  L.  Q.  C.,  6,  281. 

Lay,  Mrs.  Henrietta,  wife  of  Colo 
nel  George  W.  Lay,  daughter  of 
Judge  Campbell,  281. 

Lee,  General  Fitzhugh,  170. 

Legislature,  nullification  of  stat 
utes  of,  254,  255. 

Letson  case,  28,  29. 


Lincoln,  Abraham,  in  Forsyth  vs. 
Reynolds,  83;  elected  to  Presi 
dency,  109;  his  understanding  of 
:  the  controversy  over  slavery, 
113;  and  promise  to  evacuate 
Fort  Sumter,  141-48;  as  to  what 
he  said  at  the  Hampton 
Roads  Conference,  165-68;  as 
to  his  proposition  to  compensate 
Southerners  for  slaves,  165-69; 
conversations  of  Judge  Camp 
bell  with,  175-77;  his  letter  of 
April  6,  1865  to  General  Weit- 
zel,  177,  178;  withholds  consent 
for  Legislature  to  assemble  at 
Richmond,  178;  assassination, 
179 ;  "  Memorandum  "  handed  to 
Judge  Campbell,  179;  review  of 
conduct  of,  in  connection  with 
assembling  of  Confederate  Leg 
islatures,  180—97;  his  plan  of  re 
construction,  294. 

Louisiana  Gas  Company  case,  154— 
56. 

Ludeling,  Chief  Justice,  210,  236- 
38. 

Lutz,  Professor  Ralph  H.,  paper 
of,  concerning  Rudolph  Schlei- 
den,  146,  147. 

Maine,  Sir  Henry,  on  legal  fictions, 
30. 

Marshall,  Chief  Justice,  on  the 
"corporation  "  and  the  "citizen," 
27,  28. 

Marshall,  in  Kentucky  vs.  Denison, 
78. 

Marshall  vs.  Baltimore  &  Ohio 
Railroad  Company,  27-30. 

Mason,  J.  M.,  169;  incident  con 
cerning  his  wife,  related  by 
Judge  Campbell,  264,  265. 

Mason,  Thomas  W.,  on  the  era  of 
reconstruction,  202,  203. 

Matthews,  Justice  Stanley,  282. 

Maury,  William  A.,  on  Judges 
Curtis  and  Campbell,  205;  on 
Judge  Campbell's  argument  in 
the  Slaughter-House  cases,  219, 
220;  on  Judge  Campbell's  argu- 


308 


INDEX 


merit  in  the  State-bond  coupon 
case,  248;  on  Judge  Campbell's 
character  and  appearance,  258, 
260,  262;  his  tribute  to  Judge 
Campbell,  282. 

May,  Henry,  21,  S3. 

McDonald,  Allen,  2. 

McDonald,  Flora,  2. 

McDonogh,  John,  the  case  of  the 
will  of,  21-24. 

McKenna,  Judge,  250. 

McLean,  Justice,  26,  41,  64,  204. 

McNeill,  Neill.  1. 

Merrick,  E.  T.,  286. 

Methodist  Episcopal  Church  case, 
24. 

Mikell,  Professor  William  E.,  on 
the  Dred  Scott  case,  70. 

Miller,  Justice  Samuel  F.,  82;  on 
Judge  Campbell,  9,  10,  219,  249; 
in  the  Slaughter-House  cases, 
221-24,  227,  228,  232,  233;  in 
the  Express  Company  cases, 
253. 

Mitchell,  Dr.  S.  Weir,  157. 

Mobile,  8;  represented  in  Legisla 
ture  by  Judge  Campbell,  9. 

Moise,  Mr.,  96. 

Monopolies,  Judge  Campbell's 
hostility  to,  25.  See  Slaughter- 
House  cases. 

Moody,  Justice,  230,  231. 

Myers,  Gustavus,  177. 

Negro  question,  Judge  Campbell's 
expression  of  opinion  on,  274. 

Nelson,  Justice  Samuel,  122;  in 
Winans  us.  Denmead,  26;  in 
Dred  Scott  case,  63,  64;  letter  of 
Judge  Campbell  to,  concerning 
peace  conference,  161-63;  inter 
venes  for  Judge  Campbell,  199. 

Neutrality  laws,  violation  of,  90- 
102. 

New  Hampshire  ts.  Louisiana,  278. 

New  Orleans,  206,  286. 

"New  Orleans  Bulletin,"  words  of, 
on  Judge  Campbell's  charge  to 
jury  on  slave  trade,  103,  104. 

New  Orleans  Gas  Light  Company 


vs.  Louisiana  Light  Company, 
256. 

Nicaragua,  violation  of  neutrality 
laws  in  connection  with,  100. 

Nicolay  and  Hay,  criticism  of 
Judge  Campbell  in  their  "His 
tory,"  147. 

Ord,  General  Edward,  O.  C.,  178, 
186. 

Parlange,  Charles,  tribute  of,  to 
Judge  Campbell,  286. 

Patents,  cases  involving,  25-27. 

Peace  Congress  at  Washington, 
Feb.  24,  1861,  121. 

Pearson,  Richmond  M.,  19. 

Peckham,  Wheeler  H.,  242. 

Pettigru,  J.  Louis,  83. 

"  Philadelphia  Record,"  descrip 
tion  of  Judge  Campbell  from, 
260,  261. 

Pierce,  Franklin,  correspondence 
with  Judge  Campbell  concern 
ing  the  slavery  question,  114-16. 

Piqua  Branch  of  the  State  Bank  of 
Ohio  vs.  Knoop,  34,  35. 

Porter,  Alexander  J.,  89. 

Powell,  Rev.  Arthur  Chilton,  trib 
ute  of,  to  Judge  Campbell,  279, 
280. 

Pugh,  Senator  James  L.,  281. 

Quitman,  John  A.,  charged  with 
violation  of  neutrality  laws,  91, 
95-99. 

Railroad,  liability  of,  for  acts  of  its 

lessee,  36. 
Railroad  Commission  Cases,  the, 

250-52. 

Randolph,  Edmund,  243. 
Randolph,  George    W.,  Secretary 

of  War  under  the  Confederacy, 

158. 

Rate-fixing  cases,  250-52. 
Reagan,  John  H.,  82. 
Rhodes,  J.  F.,  on  Judge  Black,  140; 

on  Judge  Campbell,  142;  on  the 

Seward-Campbell    Negotiation, 


INDEX 


309 


143,  144;  on  the  Richmond  inci 
dent,  197. 

Richmond,  evacuation  of,  174. 

Richmond  incident,  the,  175-97. 

Riven,  w.  c.,  173. 

RoHflius,  Christian,  210. 
Russell,  Leslie  W.,  242. 
Rutledge,  John,  243. 

Saunders,  A.  L.,  95. 

"Savannah  Republican,"  on  Judge 
Campbell's  charge  to  jury  on 
Blave  trade,  104. 

Schleiden,  Rudolph,  on  Lincoln'H 
reference  to  the  evacuation  of 
Fort  Surnter,  146,  147. 

Bchouler,  James,  on  the  Seward- 
Carnpbell  negotiation,  143,  144. 

Secession,  Judge  Campbell's  views 
on,  118,  119;  ordinance  of, 
adopted  by  Alabama,  119;  ordi 
nances  of,  passed  by  other 
States,  120;  sentiment  in  border 
States  on,  121,  122;  of  Alabama, 
Judge  Campbell's  statement  of 
his  efforts  to  prevent,  138-40. 

Bemrnes,  Thomas  J.,  on  Judge 
Campbell's  argument  in  the 
State-bond  coupon  case,  249; 
address  on  Judge  Campbell,  280. 

Semple,  Major  H.  C.,  274,  270, 
277,  290. 

Servitude.  See  Slavery. 

Seward,  Clarence  A.,  252. 

Seward,  William  H.,  83,  116;  cop 
ies  of  notes  from,  filed  with 
statement  of  Judge  Campbell, 
132;  letters  of  Judge  Campbell 
to,  concerning  Fort  Surnter,  133- 
38. 

Be  ward-Campbell  negotiation,  the, 
122-48. 

Seymour,  Horatio,  83. 

Shepley,  General,  175,  180,  184. 

Sherman,  Senator  John,  157. 

Sherman,  General  William  T.,  157. 

Skv.ighter-House  cases,  154,  208- 
35. 

Slave  trade,  charge  of  Judge  Camp 
bell  to  grand  jury  on,  102,  103. 


Slavery,  and  the  Dred  Scott  cane, 
56-71;  doomed  to  extinction, 
83-85;  words  of  Judge  Camp 
bell  on  the  duty  of  the  Southern 
people  toward,  105-07;  discus 
sion  concerning,  after  .Lincoln'H 
election,  113;  Judge  Campbell 
advocates  constitutional  settle 
ment  of  the  question,  114;  the 
question  of  compromise  on,  116— 
18;  efforts  for  compromise  on, 
120,  121.  See  Fugitive  Slave 
Law. 

"Slavery"  arid  "servitude,"  the 
terms,  213. 

"S.  N.  T.,"  author  of  article  in  the 
"True*  Delta,"  concerning  Judge 
Campbell  and  the  Quitrnan  case, 
97-99. 

Soule,  Pierre,  89. 

Southern  Circuit  Courts,  89. 

Sparks,  Jared,  quoted  on  John 
Archibald  Campbell  (1),  5; 
quoted  on  the  early  settlers  of 
Georgia,  6. 

Speed,  Attorney-General,  letter  of 
Judge  Campbell  to,  192,  193. 

SpofTord,  Judge  Henry  M.,  207, 
236,  241. 

Stanbery,  Henry,  24. 

Stan  ton,  Kdwin  M.,  144;  Attorney- 
General,  82,  83;  on  Judge  Camp 
bell's  efforts  to  preserve  peace, 
140,  141;  approves  of  Judge 
Campbell's  scheme  to  bring 
about  peace,  163;  statement  be 
fore  Judiciary  Committee  of  the 
House  of  Representatives,  182; 
opposed  to  recognizing  rebel  or 
ganizations,  187. 

State  sovereignty,  291,  292. 

States,  immunity  of,  case  involv 
ing,  241-50.  i 

Stephens,  Alexander  H.,  143,  170, 
171. 

Stevens,  Thaddeus,  83. 

Stevenson,  in  Kentucky  vs.  Deni- 
son,  78. 

Story,  Judge  Joseph,  37,  38. 

Strict  couatructioiiiatB,  86, 291, 292. 


310 


INDEX 


Strong,  Justice  William,  236,  237. 

Supreme  Court  of  the  United 
States,  its  personnel  at  the  time 
of  Judge  Campbell's  appoint 
ment,  18-20;  Judge  Campbell's 
last  words,  addressed  to,  280. 

Swayne,  Justice,  224,  227,  233. 

Taft,  Alonzo,  82. 

Taney,  Chief  Justice  Roger  B., 
149;  in  Winans  vs.  Denmead, 
26;  in  Waring  vs.  Clarke,  40;.  de 
fends  jurisdiction  of  the  admir 
alty  in  Taylor  vs.  Caryll,  47-49; 
in  Florida  vs.  Georgia,  52;  in  the 
Dred  Scott  case,  55,  59,  60,  63, 
68,  222;  Judge  Curtis  on,  69; 
manumitted  his  slaves,  71 ;  on 
the  words  "  it  shall  be  the  duty  " 
in  the  Constitution,  79. 

Taxation,  legislative  grants  of  im 
munity  from,  35,  36. 

Taylor,  Hannis,  on  Judge  Camp 
bell's  personal  appearance,  257. 

Taylor  vs.  Caryll,  47. 

Telegraph  cases,  24. 

Tennessee  Bond  Cases,  the,  250, 
254. 

Thirteenth  Amendment,  the,  211- 
13,  221. 

Thomas  Jefferson,  The,  38. 

Thrasher,  J.  S.,  95. 

Tonnage  case,  208. 

Toombs,  Robert,  authorship  of 
letter  to,  145. 

"  Traitors,"  as  applied  to  Southern 
men,  156. 

Transportation,  development  of 
systems  of,  253. 

Troup,  George  M.,  4,  5. 

Trumbull,  Lyman,  82. 

Tucker,  J.  Randolph,  230. 

Tyler,  Samuel,  quoted  concerning 
the  Dred  Scott  case,  55. 

Venable,  Major  R.  M.,  281. 

Virginia,  the  matter  of  the  assem 
bling  of  the  Legislature  of,  177- 
97. 


Waite,  Chief  Justice  Morrison  R.," 
249,  282. 

Walker,  Albert  H.,  on  the  Winans 
vs.  Denmead  case,  25. 

Walker,  Leroy  P.,  89. 

Walker,  Percy,  101. 

Walker,  William,  case  of,  100; 
criticizes  the  judge,  101. 

Wallis,  S.  Teackle,  83. 

Waring  vs.  Clarke,  38. 

Waring  vs.  The  Mayor,  208. 

Washington,  Justice  Bushrod,  224. 

Wayne,  Justice  James  M.,  in 
Gaines  vs.  Relf,  Exr.,  13;  in 
Gaines  vs.  Hennin,  14;  in  Winans 
vs.  Denmead,  26;  in  Waring  vs. 
Clarke,  39;  on  the  decision  in 
The  Genesee  Chief,  41 ;  in  Tay 
lor  vs.  Caryll,  48;  in  the  Dred 
Scott  case,  66-68;  remained  on 
the  Bench  after  the  secession  of 
his  State,  155,  156. 

Webster,  Daniel,  13. 

Weitzel,  General  Godfrey,  175-85. 

Welles,  Mr.,  181. 

White,  Chief  Justice,  250,  258. 

White,  Andrew,  89. 

White,  Edward  Douglass,  89. 

White,  Horace,  on  the  question, 
whether  Lincoln  promised  to 
evacuate  Fort  Sumter,  144,  145. 

Whyte,  William  Pinkney,  82,  281. 

Williamson,  Mary,  5. 

Williamson,  Mica j ah,  5,  6. 

Williamson,  Sarah  Gilliam,  5,  6. 

Wilson,  James,  243. 

Winans  vs.  Denmead  case,  25-27. 

Wisconsin,  decision  of  Supreme 
Court  of,  nullifying  Fugitive 
Slave  Law,  72-75;  resolutions  of 
Legislature  of,  76. 

Wolcott,  Attorney-General  of  Ohio, 
78. 

Woodbury,  Judge,  39. 

Woods,  Justice,  228. 

Wyly,  Justice,  210. 

York  and  M.  Line  Railroad  vs. 
Winans,  36. 


CAMBRIDGE  .  MASSACHUSETTS 
U    .    S    .    A 


14  DAY  USE 

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